Exhibit 10.2
For Bank use only:
Received by: _________________
Approved by: _________________
Other: _________________
CAPITAL ONE, N.A.
successor by merger to North Fork Bank
PROMISSORY NOTE
(CONSOLIDATED AND RESTATED REVOLVING LINE OF CREDIT NOTE)
BORROWER: CVD EQUIPMENT CORPORATION, a New York corporation
PRINCIPAL: Five Million and 00/100 ($5,000,000.00) Dollars
DATE: April 16, 2008
PROMISE TO PAY: The undersigned (the "Borrower"), jointly and severally if more
than one signer, does hereby promise to pay to the order of Capital One, N.A.,
successor by merger to North Fork Bank (the "Bank") at its offices at 000
Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, or at any of its branches, the sum
of FIVE MILLION AND 00/100 ($5,000,000.00) DOLLARS (the "Note"), or, if less,
the aggregate unpaid principal balance of all Advances (as hereinafter defined)
plus interest on the outstanding principal balance at a rate equal to either (i)
the Effective LIBOR Rate (as hereinafter defined) plus two hundred (200) basis
points (each, at times, a "Libor Advance") or (ii) Capital One, N.A.'s Prime
Rate (as hereinafter defined) minus 25/100 (0.25%) percent (each, at times, a
"Prime Advance") on May 1, 2011 (the "LOC Maturity Date") on which date and at
which time all outstanding principal, accrued interest and related charges due
to the Bank shall be due and payable.
RATE (at times, the "Rate"): For purposes of this Note, LIBOR shall be deemed to
mean the London Interbank Offered Rate. "Effective LIBOR Rate" shall be deemed
to mean the LIBOR rate for the Interest Rate Period, to be chosen by the
Borrower, published two days preceding the Borrower's election to Advance,
provided that in no event shall such period exceed the number of days remaining
until the LOC Maturity Date. The "Interest Rate Period" shall be deemed to mean,
with respect to each Libor Advance made to the Borrower under this Note, the
period of either one (1) month, two (2) months or three (3) months for
establishing the Effective LIBOR Rate.
"Advances" shall be deemed to mean all advances (a Libor Advance or a Prime
Advance) made hereunder and pursuant to the Revolving Credit Agreement described
herein, at the sole discretion of the Bank, to the Borrower. Borrower shall
request such Advances on the form attached hereto as Exhibit "A", and shall
state, among other things, whether same is a Libor Advance or a Prime Advance
and, if a Libor Advance, the interest rate option for the duration of the
Interest Rate Period applicable thereto; either one (1) month, two (2) months or
three (3) months. The Borrower shall notify the Bank, at least two (2) business
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days prior to the advancement of any funds hereunder of (i) the amount it wishes
to borrow; and (ii) whether same is a Prime Advance or a Libor Advance; and
(iii) if same is a Libor Advance, the Interest Rate Period it has elected with
respect to such borrowing. An advance at the Bank's Prime Rate shall not require
advance notice.
The Borrower shall notify the Bank at least two (2) business days prior to the
expiration of an Interest Rate Period pertaining to each respective Libor
Advance as to its election of a new Interest Rate Period for such Advance to be
used to calculate the interest rate to be applied to the outstanding balance of
the applicable Libor Advance for the subsequent Interest Rate Period which may
not extend beyond the LOC Maturity Date. If the Borrower fails to give the Bank
the notice as specified above for the renewal of an Interest Rate Period, such
Interest Rate Period shall be renewed for the same Interest Rate Period at the
then effective rate, provided such Interest Rate Period does not extend beyond
the LOC Maturity Date. If such Interest Rate Period would extend beyond the LOC
Maturity Date, then such Advance shall be considered a Prime Advance and shall
bear interest from the end of the last full Interest Rate Period through the LOC
Maturity Date at Capital One, N.A.'s Prime Rate (as hereinafter defined) minus
25/100 (0.25%) percent.
Prime Rate means the rate of interest adopted from time to time by Capital One,
N.A., as its official Prime Rate. The Prime Rate may not be tied to any external
rate of interest or index and does not necessarily reflect the lowest rate of
interest actually charged at any given time by Capital One, N.A. to any
particular class or category of customers. Any change in the Prime Rate shall be
effective immediately when adopted by Capital One, N.A. without notice to
Borrower.
PAYMENT: Interest at the applicable Rate for each respective Prime Advance
hereunder shall be payable monthly, in arrears, on the outstanding principal
balance thereof, from time to time, on the first day of each month after each
Prime Advance commencing and due and payable on May 1, 2008 and continuing on
the first (1st) day of each and every month thereafter until May 1, 2011, on
which date and at which time the entire unpaid principal balance hereof and
accrued interest shall be due and payable. For each Libor Advance, interest at
the applicable Rate shall be payable, in arrears, at the end of the applicable
Interest Rate Period.
All interest payments due hereunder shall be made by automatic debit from an
account maintained by the Borrower for such purpose at the Bank in which the
Borrower shall maintain balances sufficient to pay each monthly interest payment
due to the Bank. Each monthly payment of principal and interest shall be
automatically deducted from Capital One N.A. Account No. [intentionally omitted]
in connection with this Note on the due date thereof (at times, the "due date"),
and the undersigned agrees to maintain sufficient funds in said account to cover
these payments. The undersigned further agrees that should there be insufficient
funds in said account on the monthly payment due date, or within three (3)
business days thereafter, an overdraft charge will be incurred and the account
will not be charged for the monthly payment. However, if this occurs, the
undersigned will remain responsible for the principal and interest payment, plus
any late charges, and the undersigned will be in default under this Note. In the
event that the money maintained in such account is insufficient for any payment
due under this Note, the Bank may charge any account of the Borrower for any
payment due to the Bank under this Note.
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Payments shall be applied first to interest on unpaid principal balance hereof
to the date payment is received by the Bank and then to reduction of principal.
Interest shall be calculated on a 360-day year and actual number of days
elapsed.
THIS NOTE SHALL MATURE ON MAY 1, 2011 WITH ALL SUMS OF PRINCIPAL, ACCRUED
INTEREST AND RELATED CHARGES DUE AND OWING ON SUCH DATE.
The Borrower may borrow, repay in whole or in part, and reborrow on a revolving
basis amounts up to, in the aggregate, Five Million and 00/100 ($5,000,000.00)
Dollars pursuant to the terms of this Note and the terms and conditions
contained in the Modified and Restated Revolving Credit Agreement dated April
16, 2008 between the Borrower and the Bank. However, the Bank reserves the right
to make or decline any request for an advance in its sole discretion and may
condition the availability of an advance upon, among other things, no default
occurring hereunder or under any Loan Document and the maintenance of a
satisfactory financial condition. Borrower authorizes the Bank to keep a record
of the amounts and dates of all advances and repayments hereunder, which record
shall, in the absence of manifest error, be conclusive as to the outstanding
principal amount due hereunder; provided, however, that the failure to record
any advance or repayment shall not limit or otherwise affect the obligation of
Borrower under this Note.
PREPAYMENT: If the Prime Rate interest rate option is selected, this Note may be
prepaid, in multiples of $10,000.00, without penalty. If the LIBOR interest rate
option is selected, and provided Borrower has not canceled its rate option
during the applicable Interest Rate Period, this Note may be prepaid in part or
in full on the last day of the applicable interest period for said rate without
penalty. If, however, Borrower cancels its rate option during any applicable
Interest Rate Period, Borrower shall pay to the Bank its "Lost Interest Income".
For purposes hereof, "Lost Interest Income" will be deemed to equal the excess,
if any, of (i) the amount of interest that would have accrued on the principal
amount of such advance at the effective LIBOR rate, for the period from the date
of such prepayment to the last day of the applicable interest Rate Period, less
(ii) the amount of interest that would accrue on such advance for the prepayment
period at the interest rate which the Bank would be offered at the commencement
of the prepayment period on a deposit of a comparable amount and period in the
London Interbank market. A certificate from the Bank delivered to the Borrower
setting forth the Lost Interest Income that the Bank is entitled to receive
relative to any applicable Libor Advance hereunder shall be conclusive absent
manifest error. Any partial prepayment will be applied in inverse order of
maturity and will not defer the payment schedule.
DEFAULT INTEREST RATE: The unpaid principal sum due under this Note shall bear
interest at a rate equal to five (5%) percent above the then applicable Rate of
interest set forth above on and after the occurrence of any Event of Default and
until the entire principal sum hereof has been fully paid, both before and after
the entry of any judgment with respect to such event, but in no event shall the
applicable rate either before or after the occurrence of any Event of Default
exceed the highest rate of interest, if any, permitted under applicable New York
or Federal Law.
SECURITY: This Note is secured by:
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(1) a security interest in and assignment and pledge of all monies,
deposits, or other sums now or hereafter held by the Bank on deposit, in
safekeeping, transit or otherwise, at any time credited by or due from Bank to
the Borrower, or in which the Borrower shall have an interest; and
(2) a first position security interest in all assets of the Borrower
evidenced by a Modified and Restated Revolving Credit Security Agreement of even
date herewith made by the Borrower (as Debtor therein) in favor of the Bank (as
Secured Party therein) affecting personal property and assets more particularly
described therein (the "Revolving Credit Security Agreement"), together with
appertaining UCC-1 financing statement(s); and; and
(3) a collateral Assignment by Borrower to the Bank of a portion of the
proceeds of a life insurance policy issued on the life of Xxxxxxx X. Xxxxxxxxx,
President and CEO of the Borrower, in the amount of Five Hundred Thousand and
00/100 ($500,000.00) Dollars which such policy was issued by Pruco Life
Insurance Company of New Jersey (a Stock Company of the Prudential Insurance
Company of America), under policy no. [intentionally deleted] (contract date
October 14, 2006) and has a face value of Two Million and 00/100 ($2,000,000.00)
Dollars.
"Loan Documents" or, individually, "Loan Document" as used herein shall mean
this Modified and Restated Revolving Line of Credit Note, the Modified and
Restated Revolving Credit Agreement by and between the Borrower and the Bank of
even date herewith, the Modified and Restated Revolving Credit Security
Agreement made by the Borrower in favor of the Bank also of even date herewith,
the pledge agreement mentioned herein, the foregoing documents, and any and all
other documents executed and delivered in connection with this Note and the
Loan.
RIGHT OF OFFSET: If any payment is not made on time, or if the entire balance
becomes due and payable and is not paid, all or part of the amount due may be
offset out of any account or other property which the Borrower has at the Bank
or any affiliate of the Bank without prior notice or demand. This provision is
in addition to and not in limitation of any right of common law or by statute.
LATE CHARGES: The Borrower will pay a charge of four (4%) percent of the amount
of any payment which is not made within ten (10) days of its respective due
date, or, which cannot be debited from its account due to insufficient balance
therein on the due date or within three (3) business days thereafter.
UNUSED LINE FEE: The Borrower agrees to pay to the Bank from the date hereof, on
the first day of each quarter, an unused line fee at the annual rate per annum
of 25/100 (0.25%) percent computed on the basis of the actual number of days
elapsed over 360 days on the average daily unused amount of the Principal.
DEFAULT: The Bank may declare the entire unpaid balance of this Note due and
payable on the happening of any of the following events (each, an "Event of
Default" or, collectively, "Events of Default"):
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(1) failure to pay any amount required by this Note within ten (10) days of
its respective due date, or any other obligation owed to the Bank by Borrower,
or, if applicable, failure to have sufficient funds in its account(s) for
payments due hereunder to be debited on the due date or within three (3)
business days thereafter;
(2) if the Borrower fails to pay when due any other part of the
Indebtedness (as such term is defined in the Modified and Restated Revolving
Credit Agreement) or any other amount payable in connection with the
Indebtedness or any part thereof and such failure continues for more than ten
(10) days after written notice from the Bank;
(3) failure to perform or keep or abide by any term, covenant or condition
contained in this Note, or any other document or instrument given to the Bank in
connection with this or any other loan;
(4) Borrower shall fail to perform any term, condition or covenant of this
Note, the Modified and Restated Revolving Credit Agreement, the Modified and
Restated Revolving Credit Security Agreement and any other Loan Document or
Documents of even date herewith and executed in connection herewith, or any
bond, note, debenture, loan agreement, indenture, guaranty, trust agreement,
mortgage or other instrument or agreement in connection with the borrowing of
money or the obtaining of advances or credit to which it is a party or by which
it is bound, or by which any of its properties or assets may be affected (a
"Debt Instrument"), or that, as a result of any such failure to perform
(regardless of the satisfaction of any requirement for the giving of appropriate
notice thereof or the lapse of time), the indebtedness included therein or
secured or covered thereby may be declared due and payable prior to the date on
which such indebtedness would otherwise become due and payable;
(5) any event or condition referred to any Debt Instrument shall occur or
fail to occur, so that, as a result thereof (regardless of the satisfaction of
any requirement for the giving of appropriate notice thereof or the lapse of
time), the Indebtedness included therein or secured or covered thereby may be
declared due and payable prior to the date on which such Indebtedness would
otherwise become due and payable;
(6) any Indebtedness included in any Debt Instrument or secured or covered
thereby is not paid when due, after giving effect to any applicable grace period
provided for in the documentation relating to such Indebtedness;
(7) the occurrence of an Event of Default as defined in any of the loan
documents, including, without limitation, the Modified and Restated Revolving
Credit Agreement or the Modified and Restated Revolving Credit Security
Agreement;
(8) an order for relief under the United States Bankruptcy Code as now or
hereafter in effect, shall be entered against Borrower; or Borrower shall become
insolvent, generally fail to pay its debts as they become due, make an
assignment for the benefit of creditors, file a petition in bankruptcy, be
adjudicated insolvent or bankrupt, petition or apply to any tribunal for the
appointment of a receiver or any trustee for it or a substantial part of its
assets, or shall commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, or liquidation law or statute of
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any jurisdiction, whether now or hereafter in effect; or if there shall have
been filed any such petition or application, or any such proceeding shall have
been commenced against Borrower, which remains undismissed for a period of sixty
(60) days or more; or Borrower by any act or omission shall indicate its consent
to, approval of or acquiescence in any such petition, application or proceeding
or the appointment of a receiver of or any trustee for it or any substantial
part of any of its properties, or shall suffer any such receivership or
trusteeship to continue undischarged for a period of forty-five (45) days or
more;
(9) any judgment, Federal, State or municipal tax lien entered exceeding
$10,000.00 against Borrower or any attachment, levy or execution exceeding
$10,000.00 against any of their respective properties for any amount shall
remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a
period of sixty (60) days or more;
(10) the Bank shall have determined, in its reasonable business judgment,
that one or more conditions exist or events have occurred which has resulted in
a material adverse change in the business, properties or financial condition of
Borrower;
(11) dissolution, whether voluntary or involuntary, of the Borrower or a
change in composition of the Borrower;
(12) the happening of any event which, in the judgment of the Bank,
materially adversely affects: (i) the ability of the Borrower to repay the Note;
or (ii) the aggregate value of the collateral used to secure this Note;
(13) the occurrence of an Event of Default under the Modified and Restated
Revolving Credit Agreement, or any other document or instrument given to the
Bank in connection with this Note or any other loan;
(14) for any reason any Loan Document ceases to be in full force and effect
or any lien or any collateral purported to be created by any Loan Document
ceases to be or is not a valid and perfected lien to the extent and with the
priority contemplated thereby or thereby, and no substitute collateral
acceptable to the Bank, in its sole and exclusive discretion, is put in place
within thirty (30) days;
(15) formal charges under Federal or State law shall be filed against
Borrower for which forfeiture is a potential penalty;
(16) failure to provide any financial information on request or permit an
examination of books and records;
(17) failure to pay any amount on this or any other obligation owed to the
Bank by Borrower or any other related entity;
(18) failure of the Borrower to utilize the Bank as its/their primary bank
and to maintain relevant accounts at the Bank during the term hereof;
(19) default by Borrower under any other guaranty or loan document or other
agreement made in favor of, or with, the Bank.
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Notwithstanding the foregoing, the balance of this Note shall become immediately
due and payable upon the occurrence of any of the events set forth in (8) above,
and, if this is a demand note, the Bank may declare the balance of this Note due
at any time.
ATTORNEY'S FEES: In the event the Bank retains counsel with respect to
enforcement of this Note or any other document or instrument given to the Bank,
the Borrower agrees to pay the Bank's reasonable attorneys' fees and associated
costs and disbursements (whether or not an action is commenced and whether or
not in the court of original jurisdiction, appellate court, bankruptcy court, or
otherwise).
SUBSEQUENT AGREEMENTS: The Borrower shall be bound by any agreement extending
the time or modifying the above terms of payment made by the Bank and any
owner(s) of the property covered by the mortgages referred to herein, without
notice to the Borrower, and the Borrower shall continue to be liable to pay all
amounts due hereunder, but at an interest rate not exceeding the rate set forth
herein, according to the terms of any such agreement of extension or
modification.
MISCELLANEOUS: Delay or failure of the Bank to exercise any of its rights under
this Note shall not be deemed a waiver thereof, nor shall it bar the exercise of
any such right at a later date. Each and every right and remedy granted to the
Bank hereunder, or under the Modified and Restated Revolving Credit Agreement,
the Modified and Restated Revolving Credit Security Agreement, any other
security agreement made in favor of The Bank in connection herewith or in
connection with any guaranty hereof, or under any agreement between Borrower and
the Bank or available at law or in equity shall be cumulative and not exclusive
of any other rights, powers, privileges or remedies, and may be exercised by the
Bank from time to time and as often as may be necessary in the sole and absolute
discretion of the Bank. No waiver of any condition or requirement shall be
binding unless in writing and no such written waiver shall operate as a waiver
of any other or subsequent condition or requirement. No change, amendment,
modification, termination, waiver, or discharge, in whole or in part, of any
provision of this Note shall be effective unless in writing and signed by the
Bank, and if so given by the Bank, shall be effective only in the specific
instance in which given. The Borrower acknowledges that this Note and the
Borrower's obligations under this Note are, and shall at all times continue to
be, absolute and unconditional in all respects, and shall at all times be valid
and enforceable irrespective of any other agreements or circumstances of any
nature whatsoever which might otherwise constitute a defense to this Note and
the obligations of the Borrower under this Note. The Bank or any other holder of
this Note does not have to present it before requiring payment.
THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE COURT
IN THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT SITTING IN THE
EASTERN DISTRICT OF NEW YORK, SAID VENUE BEING CHOSEN IN THE SOLE AND ABSOLUTE
DISCRETION OF THE BANK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS NOTE OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY AND CONSENTS TO THE PLACING OF VENUE IN SUFFOLK COUNTY, NEW
YORK, OR THE U.S. DISTRICT COURT AS AFORESAID. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER XXXXXX XXXXXX AND AGREES NOT TO ASSERT BY WAY OF
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MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT
THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS NOTE OR ANY
OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN MAY NOT BE LITIGATED IN OR BY
SUCH COURTS. THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
CERTIFIED OR REGISTERED MAIL TO ITS ADDRESS SET FORTH BELOW OR SUCH OTHER
ADDRESS THAT THE BORROWER SHALL HAVE NOTIFIED THE BANK IN WRITING OR ANY METHOD
AUTHORIZED BY THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS PROHIBITED BY LAW,
THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS NOTE AND FURTHER WAIVE OFFSET AND COUNTERCLAIM WITH RESPECT TO ANY
ACTION ARISING OUT OF THIS NOTE.
This Note may not be modified or terminated orally. This Note shall be governed
by the laws of the State of New York without regard to its conflict of laws
rules. The undersigned irrevocably consents to the jurisdiction and venue of any
appropriate Court chosen by The Bank in any action concerning this Note. The
Bank may accept partial payments marked "in full" without waiving any of its
rights hereunder. Any payments made after maturity or acceleration will not
reinstate the Note.
All signatories to this Note waive presentment for payment, notice of dishonor,
protest, notice of protest of this Note or other notice of any kind and all
demands whatsoever.
No failure to accelerate the debt evidenced hereby by reason of an Event of
Default hereunder, acceptance of a past due installment, or indulgence granted
from time-to-time shall be construed (a) as a novation of this Note or a
reinstatement of the indebtedness evidenced hereby or as a waiver of such right
of acceleration or the right of The Bank thereafter to insist upon strict
compliance with the terms of this Note, or (b) to prevent the exercise of such
right of acceleration or any other right granted hereunder or by applicable law;
and Xxxxxxxx hereby expressly waives the benefit of any statute or rule of law
or equity now provided, which may hereafter be provided, which would produce a
result contrary to or in conflict with the foregoing. No extension of the time
for the payment of this Note or any installment due hereunder, made by agreement
with any person now or hereafter liable for the payment of this Note, shall
operate to release, discharge, modify, change or affect the original liability
of Borrower under this Note, either in whole or in part, unless The Bank agrees
otherwise in writing. No provision of this Note may be changed, waived,
discharged, or terminated except by an instrument in writing signed by the party
against whom enforcement of the waiver, change, modification or discharge is
sought. The Bank may, without the consent of Borrower release or discharge
Borrower, accommodation party, or surety or release, surrender, waive,
substitute, compromise, or discharge any security herefor without affecting the
liability of the Borrower hereunder. The Bank may proceed against any security
herefor without notice.
The Borrower expressly warrants and represents that no statements, agreements or
representations, whether oral or written, have been made by the Bank, or by any
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employee, agent or broker of the Bank with respect to the obligation or debt
evidenced by this Note. The Borrower further expressly warrants and represents
that (a) no oral commitment has been made by the Bank to extend or continue any
credit to the Borrower or any party other than as expressly stated herein or in
those certain documents executed in connection herewith, (b) no representation
or agreement has been made by or with the Bank, or any employee, agent or broker
of the Bank, to forebear or refrain in any way from exercising any right or
remedy in its favor hereunder or otherwise unless expressly set forth herein,
and (c) the Borrower has not and will not rely on any commitment to extend or
continue any credit, nor on any agreement to forebear or refrain from exercising
rights or remedies unless such commitment or agreement shall be in writing and
duly executed by an authorized officer of the Bank.
In the event any one or more of the provisions contained in this Note should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
This Note shall bind the respective successors, heirs or representatives of the
Borrower. This Note shall not be assigned by the Borrower without the Bank's
prior written consent. The Bank, however, may assign its rights hereunder
without any notice to, or consent from, the Borrower. The term "Bank" as used
herein shall be deemed to include the Bank and its successors and/or assigns,
and any holder hereof.
OTHER PROVISIONS:
In accordance with Article 9 of the Uniform Commercial Code and Revised Article
9 thereof, the Borrower hereby authorizes the Bank to sign and file financing
statements at any time with respect to any security herefor without the
signature of the Borrower. The Borrower agrees to pay all filing fees and all
other costs and expenses incident to the filing of such statements.
The Revolving Line of Credit evidenced by this Note and by the Revolving Credit
Agreement may be cancelled by the Borrower at any time provided Borrower pays to
the Bank all sums due and owing on this Note and subject to the prepayment
provisions heretofore set forth herein.
Section headings used herein are for convenience of reference only and are not
to affect the construction of or be taken into consideration in interpreting
this Note.
This Note is a Consolidated and Restated Line of Credit Note meant to
consolidate and restate the debts under the following notes, to wit: (a) Line of
Credit Note dated June 1, 2007 made by CVD EQUIPMENT CORPORATION to North Fork
Bank in the principal sum of Two Million and 00/100 ($2,000,000.00) Dollars and
interest thereon; and (b) Revolving Line of Credit Note dated April 16, 2008
made by CVD EQUIPMENT CORPORATION to Capital One, N.A., successor by merger to
North Fork Bank in the principal sum of Three Million and 00/100 ($3,000,000.00)
DOLLARS and interest thereon, which such notes heretofore designated (a) and
(b), are currently owned and held by the Bank.
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IN WITNESS WHEREOF, the undersigned has signed this Note this April 16,
2008.
CVD EQUIPMENT CORPORATION,
a New York corporation
By:
---------------------------------------
XXXXXXX X. XXXXXXXXX,
President and CEO
By:
---------------------------------------
XXXX XXXXXXX,
Secretary and Chief Financial Officer
Xxxxxxxx's Address:
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
10
State of New York )
) : ss.:
County of Suffolk )
On April 16, 2008, before me, the undersigned, personally appeared XXXXXXX
X. XXXXXXXXX, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that she executed same in her capacity,
and that by her signature in the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.
-----------------------------
Notary Public
State of New York )
) : ss.:
County of Suffolk )
On April 16, 2008, before me, the undersigned, personally appeared XXXX
XXXXXXX, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that she executed same in her capacity, and that by her
signature in the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
-----------------------------
Notary Public
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REQUEST FOR ADVANCE
To: Capital One, N.A., successor by merger to North Fork Bank
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx, SVP or Xxxxxx Xxxxxx, VP
Request for advance pursuant to Consolidated and Restated Revolving Line of
Credit Note ("Note") made by CVD EQUIPMENT CORPORATION ("Borrower") to Capital
One, N.A., successor by merger to North Fork Bank (the "Bank") dated April 16,
2008 in the principal sum of $5,000,000.00.
Pursuant to the Note, the Borrower hereby requests the Bank make an advance in
the amount of __________________________ ($ ) Dollars on ______________,
crediting Account No. , which amount shall be absolutely due and owing under the
terms of the Note.
Interest Rate Option:
[ ] Prime less 0/25% or [ ] LIBOR
If LIBOR, the duration of the Interest Rate Period applicable to this advance
shall be: [ ] one month.....or.....[ ] two months.....or.....[ ] three
months
If this is a renewal:
--------------------
The renewal date is -----------------------------------.
The amount of the Loan to be renewed is -----------------($----------------).
The duration of the Interest Period applicable to this renewal is:
[ ] one month.....or.....[ ] two months.....or.....[ ] three months
OR
Convert $--------------------- loan to Prime less 0.25%.
In connection with this request for advance or renewal, the Borrower hereby
certifies to the Bank that:
1) The representations and warranties contained in the Note and the Modified
and Restated Revolving Credit Agreement dated April 16, 2008 between the
Borrower and The Bank ("RCLA") are true and accurate in all material
respects on and as of the date hereof as though made on and as of such
date;
2) No Default or Event of Default as defined in the Note and/or RCLA has
occurred and is continuing, or would result from such advance; and
3) The Note and the RCLA, inclusive of the amount of the requested advance or
renewal, are valid and binding obligations of the Borrower, each
enforceable in accordance with its respective terms.
Dated: __________________
By:
--------------------------------------------
XXXXXXX X. XXXXXXXXX,
President and CEO
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