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EXHIBIT 10.2
COMMERCIAL REVOLVING NOTE
(Working Capital Line of Credit)
$5,000,000.00 Atlanta, Georgia November 19, 1997
FOR VALUE RECEIVED, the undersigned TIMELY NORTH, INC., a Georgia
corporation (hereinafter referred to as "Maker"), promises to pay to the order
of SOUTHTRUST BANK, N.A., a national banking association (hereinafter referred
to as "Payee"; Payee and any subsequent holder of this Note being referred to
collectively as "Holder"), at any office of Payee in Atlanta, Georgia, or at
such other place as Holder may designate, the principal amount of Five Million
and No/100 Dollars ($5,000,000.00), or such lesser amount as may be outstanding
and unpaid hereunder, together with interest on so much thereof as is
outstanding hereunder from time to time at the rate stated below from the date
of this Note (or other interest accrual date shown below) until maturity, and at
the rate of interest which is two percent (2%) per annum in excess of the rate
stated below after maturity, said principal and interest to be due and payable
as stated below.
INTEREST RATE. Interest will accrue on each advance made under this
Note at a rate per annum which is two hundred seventy-five (275) basis points
(one hundred [100] basis points equals one percent [1%]) plus the "Libor Rate"
(hereinafter referred to as the "Floating Rate") and shall be computed on the
daily outstanding principal balance hereunder based on a three hundred sixty
(360) day year. "Libor Rate," as used herein, means a per annum rate of interest
(rounded upwards, if necessary, to the nearest 1/16th of one percent) equal to
the quotient of (i) the "London Interbank Offered Rate (LIBOR)" for contracts
with a maturity date of ninety (90) days, as quoted in the MONEY RATES section
of The Wall Street Journal as effective for contracts entered into on the first
day of the applicable interest period, divided by (ii) 1.00 minus any reserve
requirement applicable to "eurodollar loans" (as such term is defined in
Regulation D) for the applicable interest period (expressed as a decimal). If at
any time or from time to time such Libor Rate increases or decreases, then the
rate of interest charged shall be correspondingly increased or decreased
effective on the day on which such increase or decrease of such Libor Rate
becomes effective.
PAYMENT SCHEDULE. Principal and interest shall be due and payable as
follows: Interest only on the outstanding principal amount shall be due and
payable monthly, in arrears, beginning on December 1, 1997, and continuing on
the first day of each month thereafter until maturity. On April 30, 1998, all
unpaid principal, plus accrued and unpaid interest, shall be due and payable in
full.
INTEREST ACCRUAL. Interest shall accrue daily on the unpaid principal
amount of this Note and will be calculated at the rate stated above on the basis
of a 360-day year and the actual days elapsed by multiplying the unpaid
principal amount by the per annum rate stated above, multiplying the product
thereof by the actual number of days elapsed, and dividing the product so
obtained by 360.
REBORROWINGS. Until the earlier of maturity of this Note, or the
occurrence of any event giving Holder the right to accelerate the maturity of
this Note as provided below, or written or oral notice to Maker of Xxxxxx's
election to terminate the line of credit (which notice Holder may give at its
reasonable discretion), Maker may borrow hereunder, repay the principal amount
in whole or in part upon the terms and conditions set forth herein, and reborrow
hereunder, so long as the aggregate unpaid principal amount of such advances
does not exceed the principal amount of this Note at any time. To the extent
permitted by law, any accrued interest not paid when due as set forth above may
at Xxxxxx's discretion be paid by Xxxxxx providing an advance hereunder in the
amount of such unpaid interest, or if the outstanding principal balance under
this Note would not permit such advance, the unpaid interest shall be added to
the principal balance due hereunder. Any such advance or principal amount shall
accrue interest at the rate provided for herein.
SECURITY. As security for the full payment and performance of this
Note, Maker hereby assigns, conveys, and grants a security interest to Holder in
all property in which Maker has an interest which is in or comes into the
possession, control or custody of Holder, all property in which Maker has
heretofore granted or hereafter grants to Holder a security interest to secure
any obligation, and all property of Maker in which Holder has acquired or
hereafter otherwise acquires a lien, encumbrance or other right (including, but
not limited to, balances, credits, deposits, accounts and monies). Maker hereby
agrees that Holder may, at any time and without notice, apply any
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balances, credits, deposits, accounts, monies or other indebtedness now or
hereafter owing by Holder to Maker in satisfaction of any indebtedness evidenced
by this Note whether or not due.
FINANCIAL STATEMENTS. Maker agrees, for so long as there is any amount
outstanding under this Note or Maker is entitled to request advances hereunder,
to provide Holder financial statements and other information of or concerning
Maker and any other Obligor (as hereinafter defined), in such detail, of such
quality (i.e., audited, reviewed, unaudited or otherwise), and with such
frequency and timeliness as Holder may reasonably request from time to time. All
financial statements required by Xxxxxx as set forth above shall be prepared in
accordance with generally accepted accounting principles (except for the absence
of footnotes with respect to monthly and quarterly financial statements) and
shall fairly present the financial condition and results of operations of the
Obligor specified as of the end of and for the period covered thereby.
USE OF PROCEEDS. Maker represents and agrees that the proceeds of the
loan evidenced by this Note shall be used solely for business purposes and shall
not be used for any personal, family, household, consumer or other purpose.
LATE CHARGE. If any payment of the principal amount outstanding under
this Note is late ten (10) days or more, in addition to interest after maturity
as provided above, Maker agrees to pay a late charge equal to one-half of one
percent (1/2%) of the amount of the payment which is late, subject to a minimum
late charge of $5.00 and a maximum late charge of $250.00 for any one payment as
compensation for administrative and other costs associated with the late payment
as set forth below.
MAXIMUM RATE OF INTEREST. If, at any time, the rate or amount of
interest, late charges, attorneys' fees or any other charge payable under this
Note should exceed the maximum rate or amount permitted by applicable law, then
for such time as such rate or amount would be excessive, its application shall
be suspended and there shall be charged instead the maximum rate or amount
permitted under such law, and any excess interest or other charge paid by Maker
or collected by Holder shall be refunded to Maker or credited against the
principal amount of this Note, at the election of Holder or as required by
applicable law. Maker agrees that the late charge provided in this Note is a
reasonable estimate of probable additional unanticipated internal costs to
Holder of reporting and accounting for the late payment, that such costs are
difficult or impossible to estimate accurately, and that the agreement to pay a
late charge is a reasonable liquidated damages provision.
DEFAULT. The following shall constitute events of default under this
Note: a failure of Maker (Maker and each other person primarily or secondarily
liable to Holder for the indebtedness evidenced by this Note hereinafter
collectively referred to as "Obligors") to make any payment of principal or
interest or any other amount under this Note when due or failure of Maker to
perform or observe any promise or agreement contained in this Note; the death of
(if an individual), death of a general partner (if a partnership), or
dissolution of (if a partnership or corporation), insolvency of, general
assignment for the benefit of creditors by, any Obligor; the commencement of a
voluntary proceeding under any law relating to bankruptcy, insolvency,
reorganization, arrangement, composition or readjustment of debt, dissolution,
liquidation or debtor relief law or statute of any jurisdiction, whether now or
hereafter in effect, including without limitation the filing of a petition under
any chapter of the Federal Bankruptcy Code, as amended, by or against, or
acquiescence in writing to same by, or failure to timely and diligently
controvert any such involuntary proceeding by, any Obligor; the filing of a
proceeding for the appointment of a receiver, custodian, trustee, liquidator or
similar official for Obligor or Obligor's property or consenting to the
appointment of same; the failure of an involuntary petition for relief under the
federal bankruptcy code to be dismissed within thirty (30) days after the
commencement thereof or in which an order for relief is entered; the making by
any Obligor of a conveyance fraudulent as to creditors under any state or
federal law; entry of any judgment against, or issuance of a levy or writ of
execution, attachment or garnishment against any of the property of, any
Obligor; the inability of any Obligor to pay debts as they become due or admit
in writing to such effect; the transfer by any Obligor of all or substantially
all of his, her or its assets outside the ordinary course of business, or the
waste, loss or dissipation of a substantial part of such person's assets; if any
Obligor is a partnership, the withdrawal or removal of any general partner of
such partnership; if any Obligor is a corporation, the transfer, directly or
indirectly (including through any voting trust, irrevocable proxy, or the like),
of the ownership or power to vote more than thirty percent (30%) of the voting
stock of such corporation; the suspension of the operation of any Obligor's
present business; the occurrence of any default or event authorizing
acceleration as provided under any promissory note or other evidence of debt,
loan agreement, security agreement, pledge agreement, assignment, mortgage, deed
to secure debt, deed of trust, lease agreement or other agreement or contract
between any Obligor and Holder or any third party; any statement, representation
or warranty of any Obligor made orally or
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in writing in any document evidencing, securing or otherwise relating to the
indebtedness evidenced by this Note or in any other writing or statement at any
time furnished or made by any Obligor to Holder is false or misleading in a
material respect as of the date furnished or made; revocation or termination of
any guaranty executed in favor of Holder guaranteeing the indebtedness evidenced
by this Note; the financial responsibility of any Obligor becomes impaired at
any time in the sole reasonable opinion of Xxxxxx; or, the reasonable
determination by Holder that it otherwise deems itself to be insecure.
REMEDIES. If this Note is payable on demand, all of the principal
amount outstanding hereunder and all accrued but unpaid interest thereon shall
be due and payable in full upon demand by Holder, whether or not any event of
default described below has occurred and whether or not Holder reasonably deems
itself to be insecure. If any event of default under this Note should occur, all
unpaid amounts of any or all of the principal amount outstanding hereunder and
all accrued but unpaid interest thereon shall, at the option of Holder and
without notice or demand, become immediately due and payable and Holder shall
have and be entitled to exercise, from time to time, all the rights and remedies
available to it as provided elsewhere in this Note, in any other agreement or
contract between Maker and Holder and under applicable law. All of Holder's
rights and remedies shall be cumulative, and any failure of Holder to exercise
any such right or remedy shall not be construed as a waiver of the right to
exercise the same or any other right or remedy at any time and from time to time
thereafter.
WAIVER. With respect to the obligations of Maker under this Note, to
the extent permitted by applicable law, Maker waives the following: (1) demand,
presentment, protest, notice of dishonor, suit against any party and all other
requirements necessary to charge or hold Maker liable on this Note; (2) all
statutory provisions and requirements for the benefit of Maker (including notice
requirements), now or hereafter in force (except to the extent provided for in
any other contract or agreement between Maker and Holder); and (3) the right to
interpose any set-off or counterclaim of any nature or description in any
litigation in which Holder and any Maker shall be adverse parties.
NOTICES. Any and all notices, elections, demands, requests and
responses thereto permitted or required to be given under this Note shall be in
writing, signed by or on behalf of the party giving the same, and shall be
deemed to have been properly given and shall be effective upon being personally
delivered, or three (3) days after being deposited in the United States mail,
postage prepaid, certified with return receipt requested, to Maker if mailed to
the address set forth above Maker's name at the end of this Note and to Holder
at the address set forth in the beginning of this Note or at such other address
within the continental United States for either party as such party may
designate by notice to the other given in accordance with the provisions of this
paragraph; provided, however, that the time period in which a response to any
such notice, election, demand or request must be given shall commence on the
date of receipt thereof; and provided further that no notice of change of
address shall be effective until the date of receipt thereof. Personal delivery
to a party or to any officer, partner, agent or employee of such party at said
address shall constitute receipt. Rejection or other refusal to accept or
inability to deliver because of a changed address of which no notice has been
received shall also constitute receipt.
EXPENSES AND COLLECTION COSTS. Xxxxx agrees to pay all filing fees and
taxes in connection with this Note and all costs of collecting or securing or
attempting to collect or secure any of the indebtedness evidenced by this Note,
including, without limitation, court costs, litigation expenses and reasonable
attorneys' fees, and all accrued but unpaid interest thereon, if this Note is
referred to an attorney for collection. If attorneys' fees in such amount would
be prohibited by applicable law, then Maker agrees to pay reasonable attorneys'
fees not to exceed the maximum amount allowed by law.
PARTICIPATION OF NOTE. Maker understands that Holder may enter into
participation agreements with participating institutions whereby Holder will
sell undivided interest in this Note to such other institutions. Maker agrees
that Xxxxxx may furnish information regarding Maker, including financial
information, to such institutions from time to time and also to prospective
participating institutions in order that such institutions may make an informed
decision whether to purchase a participation in this Note. Maker hereby grants
to each such participating institution, to the extent of its participation in
this Note, the right to set off deposit accounts maintained by Maker, or any of
them, with such institution, against unpaid amounts owed under this Note. Upon
written request from Xxxxxx, Maker agrees to make each payment under this Note
directly to each such participating institution in proportion to the
participant's interest in this Note as set forth in such request from Holder.
MISCELLANEOUS. No delay by Xxxxxx in enforcing its rights hereunder
shall prejudice Xxxxxx's rights to enforce this Note. No waiver by Holder shall
be effective unless made in writing by a duly authorized officer or
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agent of Xxxxxx, and no waiver by Holder of any right or remedy shall constitute
a waiver of any other or future right or remedy. This Note shall inure to the
benefit of Xxxxxx, its successors and assigns, and to any person to whom Holder
may grant an interest in any of the indebtedness evidenced hereby, and shall be
binding upon Maker, and his, her, its, or their respective heirs, executors,
administrators, successors and assigns. Maker, if more than one, includes each
person executing this Note, who are jointly and severally liable for all
obligations of Maker under this Note, and each Maker has subscribed its name
hereto without condition that anyone else should sign or become bound hereon and
without any other condition whatever being made. Holder may release any Obligor
or renew or extend the maturity hereof without affecting any obligations of any
other Obligor to repay the principal amount outstanding hereunder and all
accrued but unpaid interest. THIS NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
CONSENT TO JURISDICTION. MAKER HEREBY CONSENTS TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF GEORGIA, AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON
CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED IN ANY SUCH COURT AND AGREES
THAT PROCESS IN ANY SUCH ACTION WILL BE SUFFICIENT IF SERVED ON MAKER BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED OR IN ANY MANNER PROVIDED BY LAW.
NOTWITHSTANDING THE FOREGOING, HOLDER SHALL HAVE THE RIGHT TO BRING ANY ACTION
OR PROCEEDING AGAINST MAKER OR MAKER'S PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION HOLDER DEEMS NECESSARY OR APPROPRIATE IN ORDER TO ENFORCE THE
OBLIGATIONS OF MAKER UNDER THIS NOTE.
HEADINGS. The headings of the paragraphs set forth in this Note are for
convenience of reference only, and are not to be considered a part hereof and
shall not limit or otherwise affect any of the terms hereof.
TIME OF ESSENCE. Time is of the essence of the payment and performance
of this Note.
IN WITNESS WHEREOF, Maker has executed this Note under seal, or has
caused this Note to be executed by its duly authorized agent and its seal to be
affixed hereto, as of the date first above written.
ADDRESS OF 0000 XXXXXXX XXXXX XXXX
XXXXX: XXXXX 000
XXXXXXX, XXXXXXX 00000
MAKER:
TIMELY NORTH, INC., a Georgia corporation
By: /s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
[CORPORATE SEAL]
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