SUBSTITUTE REVOLVING CREDIT NOTE
$12,500,000.00 As of September 30, 2000
FOR VALUE RECEIVED, the undersigned, BALTEK CORPORATION, a Delaware
corporation and CRUSTACEA CORPORATION, a Delaware corporation (each of Baltek
Corporation and Crustacea Corporation a "Borrower" and collectively the
"Borrowers"), hereby, jointly and severally, unconditionally promises to pay on
or before December 31, 2000 (the "Maturity Date"), to the order of SUMMIT BANK,
a banking institution of the State of New Jersey (the "Bank"), at the office of
the Bank located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, or at such other
location as the Bank shall designate, in lawful money of the United States of
America and in immediately available funds, the principal amount of (i)
$12,500,000.00 or (ii) so much thereof (or any greater amount, if any) as shall
have been advanced (the "Advances") by the Bank to the Borrower pursuant to that
certain Revolving Loan and Security Agreement dated as of the date hereof
between the Borrowers and the Bank, as may be amended from time to time (the
"Agreement"). Terms defined in the Agreement shall have the same meaning when
used herein.
The Borrowers jointly and severally further agree to pay interest in
like money at such office on the unpaid principal amount hereof from time to
time as hereinafter provided. The unpaid principal amount hereof shall bear
interest commencing with the date hereof at a fluctuating rate per annum equal
to the Base Rate minus three-quarters of one percent (3/4 of 1%). As used
herein, the term "Base Rate" shall mean the rate of interest announced from time
to time by the Bank as its "base rate" or "base lending rate". This rate of
interest is determined from time to time by the Bank as a means of pricing some
loans to its customers and is neither tied to any external rate of interest or
index nor does it necessarily reflect the lowest rate of interest actually
charged by the Bank to any particular class or category of customers of the
Bank.
Interest shall be calculated on the basis of a 360-day year for the
actual number of days elapsed and shall be adjusted automatically as of the
opening of business on each day on which any change in the Base Rate is
announced by the Bank at its principal office.
Installments of accrued interest only shall be due and payable hereon
monthly, with the first such installment being due and payable on the first day
of the first month following the date hereof, and the remainder of such monthly
installments of interest being due and payable on the first day of each and
every month thereafter until this Note shall have been paid in full.
Notwithstanding anything contained herein to the contrary, the
Borrowers shall have the option, in accordance with Section 2.1 of the
Agreement, to convert all or any part of its Base Rate Loans (as such term is
defined in the Agreement) to LIBOR Based Rate Loans (as such term is defined in
the Agreement), and upon doing so shall, jointly and severally, pay interest on
the unpaid principal amount of this Note from time to time outstanding on a
monthly basis.
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All advances made by the Bank to the Borrowers hereunder may be noted
by a Bank on the Schedule to be annexed hereto, and the Bank is authorized to
make such notations which shall be prima facie evidence of the principal amount
outstanding hereunder at any time; provided, however, that any failure to make
such a notation (or any error in notation) shall not limit or otherwise affect
the obligation of the Borrowers hereunder which is and shall remain absolute and
unconditional.
In the event that any payment due under this Note shall not be received
by Bank within ten (10) days of the due date, Borrowers shall, to the extent
permitted by law, pay Bank a late charge of five percent (5%) of the overdue
payment (but in no event more than $2,500.00) as compensation to Bank. Any such
late charge shall be in addition to all other rights and remedies to which Bank
may be entitled and shall be immediately due and payable. Borrowers acknowledge
that (i) such late charge is a material inducement to Bank to make the loan,
(ii) Bank would not have made the loan in the absence of the agreement of the
Borrowers to pay such late charge, and (iii) such late charge is not a penalty
and represents a reasonable estimate of the cost to Bank in allocating its
resources (both personnel and financial) to the additional review, monitoring,
administration and collection of the loan.
All payments received hereunder may be applied first to the payment of
any expenses or charges payable hereunder and accrued interest, and the balance
only applied to principal.
This Note may be prepaid, in whole or in part, at one time or from time
to time, without premium or penalty.
This Note is a replacement of the Revolving Credit Note dated December
21, 1999, referred to in the Agreement and this Note is the Substitute Note
referred to in the Amendment to Revolving Loan and Security Agreement of even
date herewith, is secured by the Collateral described in the Agreement and the
Guaranty Agreement.
The Bank may declare this Note to be immediately due and payable if any
of the following events shall have occurred:
(1) Failure by the Borrowers to make any payment of principal or
interest on this Note when due; or
(2) An Event of Default shall have occurred under the Agreement or any
of the other Loan Documents (including any grace periods provided herein or
therein).
To the extent permitted by law, whenever there is any Event of Default
under this Note, the RATE of interest on the unpaid principal balance shall, at
the option of the Bank, be 5% in excess of the RATE of interest provided herein.
Borrowers acknowledge that: (i) such additional rate is a material inducement to
Bank to make the loan; (ii) Bank would not have made the loan in absence of the
agreement of the Borrowers to pay such additional rate; (iii) such additional
rate represents compensation for increased risk to Bank that the loan will not
be repaid; and (iv) such rate is not a penalty and represents a reasonable
estimate of (a) the cost to Bank in allocating its resources (both personnel and
financial) to the on-going review, monitoring, administration and collection of
the loan and (b) compensation to Bank for losses that are difficult to
ascertain.
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This Note may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
Should the indebtedness represented by this Note or any part hereof be
collected at law or in equity, or in bankruptcy, receivership, or any other
court proceeding, or should this Note be placed in the hands of attorneys for
collection upon default, the Borrower agrees to pay, in addition to the
principal and interest due and payable hereon, all reasonable costs of
collecting or attempting to collect this Note, including reasonable attorneys'
fees and expenses.
This Note shall be and remain in full force and effect and in no way
impaired until the actual payment thereof to the Bank, its successors or
assigns.
Anything herein to the contrary notwithstanding, the obligations of the
Borrower under this Note shall be subject to the limitation that payments of
interest shall not be required to the extent that receipt of any such payment by
the Bank would be contrary to provisions of law applicable to the Bank limiting
the maximum rate of interest which may be charged or collected by the Bank.
Each of the Borrowers and all endorsers and guarantors of this Note
hereby waive presentment, demand for payment, protest and notice of dishonor of
this Note.
This Note is binding upon the Borrowers and its successors and assigns
and shall inure to the benefit of the Bank and its successors and assigns.
This Note and the rights and obligations of the parties hereto shall be
subject to and governed by the laws of the State of New Jersey.
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be duly executed by its authorized officers as of the day and year above
written.
BALTEK CORPORATION
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx, President
CRUSTACEA CORPORATION
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx, President
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