Exhibit 10.5 - Amended and Restated Master Advance Note between the Company
------------ and Fleet National Bank, dated November 19, 2001
AMENDED AND RESTATED
MASTER ADVANCE NOTE
$1,500,000 November 19, 2001
FOR VALUE RECEIVED, the Undersigned (the "Borrower"), with an address at 000
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX, 00000, promises to pay to the order of FLEET
NATIONAL BANK, (the "Bank"), in lawful money of the United States of America,
without counterclaim or set-off and free and clear of and without any deduction
or withholding for taxes or other payments, in immediately available funds at
its offices located at 0000 Xxxxxx Xxxxx Xxxx, Xx. Xxxxxxxxxx, XX, 00000 or at
such other location as the Bank may designate from time to time, the principal
sum of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) (the "Facility")
or such lesser amount as may be advanced to or for the benefit of the Borrower
hereunder, together with interest accruing on the outstanding principal balance
from the date hereof, all as provided below:
1. Advances. The Borrower may request advances, repay and request additional
advances hereunder until the Expiration Date, subject to the terms and
conditions of this Note and the Loan Documents (as hereinafter defined). The
"Expiration Date" shall mean September 30, 2002, or such later date as may be
designated by the Bank by written notice from the Bank to the Borrower. The
Borrower acknowledges and agrees that in no event will the Bank be under any
obligation to extend or renew the Facility or this Note beyond the Expiration
Date. The Borrower may request advances hereunder upon giving oral or written
notice to the Bank by 11:00 a.m. (Philadelphia, PA time) (a) on the day of the
proposed advance, in the case of advances to bear interest under the Base Rate
Option (as hereinafter defined) and (b) three (3) Business Days prior to the
proposed advance, in the case of advances to bear interest under the Euro-Rate
Option (as hereinafter defined), followed promptly thereafter by the Borrower's
written confirmation to the Bank of any oral notice. The aggregate unpaid
principal amount of advances under this Note shall not exceed the face amount of
this Note.
2. Rate of Interest. Each advance outstanding under this Note will bear interest
at a rate or rates per annum as may be selected by the Borrower from the
interest rate options set forth below (each, an "Option"):
(i) Base Rate Option. A rate of interest per annum which is at all
times equal to the Prime Rate ("Base Rate"). For purposes hereof, the term
"Prime Rate" shall mean the rate publicly announced by the Bank from time to
time as its prime rate. The Prime Rate is determined from time to time by the
Bank as a means of pricing some loans to its borrowers. The Prime Rate is not
tied to any external rate of interest or index, and does not necessarily reflect
the lowest rate of interest actually charged by the Bank to any particular class
or category of customers. If and when the Prime Rate changes, the rate of
interest with respect to any advance to which the Base Rate Option applies will
change automatically without notice to the Borrower, effective on the date of
any such change. There are no required minimum interest periods for advances
bearing interest under the Base Rate Option.
(ii) Euro-Rate Option. A rate per annum equal to the sum of (A) the
Euro-Rate plus (B) three hundred (300) basis points, for the applicable
Euro-Rate Interest Period.
For purposes hereof, the following terms shall have the following meanings:
"Business Day" shall mean any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to
be closed for business in Philadelphia, PA.
"Euro-Rate" shall mean, with respect to any advance to which the
Euro-Rate Option applies for the applicable Euro-Rate Interest Period,
the interest rate per annum determined by the Bank by dividing (the
resulting quotient rounded upwards, if necessary, to the nearest
1/100th of 1%) (i) the rate per annum quoted at approximately 11 A.M.
London time, by Bank one Business Day prior to the first day of such
interest Period for the offering to leading banks in the London
interbank market of Dollar deposits for a period, and in an amount,
comparable to the Interest Period and principal amount of the advance
which shall be made by Bank and outstanding during such Interest Period
by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.
"Euro-Rate Interest Period" shall mean the period of one (1), two (2)
or three (3) months selected by the Borrower commencing on the date of
disbursement of an advance (or the date of conversion of an advance to
the Euro-Rate Option, as the case may be) and each successive period
selected by the Borrower thereafter; provided, that if a Euro-Rate
Interest Period would end on a day which is not a Business Day, it
shall end on the next succeeding Business Day, unless such day falls in
the succeeding calendar month in which case the Euro-Rate Interest
Period shall end on the next preceding Business Day. In no event shall
any Euro-Rate Interest Period end on a day after the Expiration Date.
"Euro-Rate Reserve Percentage" shall mean the maximum effective
percentage in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, without limitation,
supplemental, marginal and emergency reserve requirements) with respect
to eurocurrency funding (currently referred to as "Eurocurrency
liabilities").
The Euro-Rate shall be adjusted with respect to any advance to which the
Euro-Rate Option applies on and as of the effective date of any change in the
Euro-Rate Reserve Percentage. The Bank shall give prompt notice to the Borrower
of the Euro-Rate as determined or adjusted in accordance herewith, which
determination shall be conclusive absent manifest error.
If the Bank determines (which determination shall be final and conclusive) that,
by reason of circumstances affecting the eurodollar market generally, deposits
in dollars (in the applicable amounts) are not being offered to banks in the
eurodollar market for the selected term, or adequate means do not exist for
ascertaining the Euro-Rate, then the Bank shall give notice thereof to the
Borrower. Thereafter, until the Bank notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, (a) the
availability of the Euro-Rate Option shall be suspended, and (b) the interest
rate for all advances then bearing interest under the Euro-Rate Option shall be
converted at the expiration of the then current Euro-Rate Interest Period(s) to
the Base Rate Option.
In addition, if, after the date of this Note, the Bank shall determine (which
determination shall be final and conclusive) that any enactment, promulgation or
adoption of or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by a governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any guideline, request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for the
Bank to make or maintain or fund loans under the Euro-Rate Option, the Bank
shall notify the Borrower. Upon receipt of such notice, until the Bank notifies
the Borrower that the circumstances giving rise to such determination no longer
apply, (a) the availability of the Euro-Rate Option shall be suspended, and (b)
the interest rate on all advances then bearing interest under the Euro-Rate
Option shall be converted to the Base Rate Option either (i) on the last day of
the then current Euro-Rate Interest Period(s) if the Bank may lawfully continue
to maintain advances under the Euro-Rate Option to such day, or (ii) immediately
if the Bank may not lawfully continue to maintain advances under the Euro-Rate
Option.
The foregoing notwithstanding, it is understood that the Borrower may select
different Options to apply simultaneously to different portions of the advances
and may select up to three (3) different interest periods to apply
simultaneously to different portions of the advances bearing interest under the
Euro-Rate Option. Interest hereunder will be calculated on the basis of a year
of 360 days for the actual number of days elapsed. In no event will the rate of
interest hereunder exceed the maximum rate allowed by law.
3. Interest Rate Election. Subject to the terms and conditions of this Note, at
the end of each interest period applicable to any advance, the Borrower may
renew the Option applicable to such advance or convert such advance to a
different Option; provided that, during any period in which any Event of Default
(as hereinafter defined) has occurred and is continuing, any advances bearing
interest under the Euro-Rate Option shall, at the Bank's sole discretion, be
converted at the end of the applicable Euro-Rate Interest Period to the Base
Rate Option and the Euro-Rate Option will not be available to Borrower with
respect to any new advances until such Event of Default has been cured by the
Borrower or waived by the Bank. The Borrower shall notify the Bank of each
election of an Option, each conversion from one Option to another, the amount of
the advances then outstanding to be allocated to each Option and where relevant
the interest periods therefor. In the case of converting to the Euro-Rate
Option, such notice shall be given at least three (3) Business Days prior to the
commencement of any Euro-Rate Interest Period. If no notice of conversion or
renewal is timely received by the Bank, the Borrower shall be deemed to have
converted such advance to the Base Rate Option. Any such election shall be
promptly confirmed in writing by such method as the Bank may require.
4. Advance Procedures. A request for advance made by telephone must be promptly
confirmed in writing by such method as the Bank may require. The Borrower
authorizes the Bank to accept telephonic requests for advances, and the Bank
shall be entitled to rely upon the authority of any person providing such
instructions. The Borrower hereby indemnifies and holds the Bank harmless from
and against any and all damages, losses, liabilities, costs and expenses
(including reasonable attorneys' fees and expenses) which may arise or be
created by the acceptance of such telephone requests or making such advances.
The Bank will enter on its books and records, which entry when made will be
presumed correct, the date and amount of each advance, the interest rate and
interest period applicable thereto, as well as the date and amount of each
payment.
5. Payment Terms. The Borrower shall pay accrued interest on the unpaid
principal balance of this Note in arrears on the first day of each month during
the term hereof. All outstanding principal and accrued interest hereunder shall
be due and payable in full on the Expiration Date.
If any payment under this Note shall become due on a Saturday, Sunday or public
holiday under the laws of the State where the Bank's office indicated above is
located, such payment shall be made on the next succeeding business day and such
extension of time shall be included in computing interest in connection with
such payment. The Borrower hereby authorizes the Bank to charge the Borrower's
deposit account at the Bank for any payment when due hereunder. Payments
received will be applied to charges, fees and expenses (including attorneys'
fees), accrued interest and principal in any order the Bank may choose, in its
sole discretion.
6. Late Payments; Default Rate. If the Borrower fails to make any payment of
principal, interest or other amount coming due pursuant to the provisions of
this Note within ten (10) calendar days of the date due and payable, the
Borrower also shall pay to the Bank a late charge equal to five percent (5%) of
the amount of such payment (the "Late Charge"). Such 10 day period shall not be
construed in any way to extend the due date of any such payment. Upon maturity,
whether by acceleration, demand or otherwise, and at the Bank's option upon the
occurrence of any Event of Default (as hereinafter defined) and during the
continuance thereof, this Note shall bear interest at a rate per annum (based on
a year of 360 days and actual days elapsed) which shall be four (4) percentage
points in excess of the interest rate in effect from time to time under this
Note but not more than the maximum rate allowed by law (the "Default Rate"). The
Default Rate shall continue to apply whether or not judgment shall be entered on
this Note. Both the Late Charge and the Default Rate are imposed as liquidated
damages for the purpose of defraying the Bank's expenses incident to the
handling of delinquent payments, but are in addition to, and not in lieu of, the
Bank's exercise of any rights and remedies hereunder, under the other Loan
Documents or under applicable law, and any fees and expenses of any agents or
attorneys which the Bank may employ. In addition, the Default Rate reflects the
increased credit risk to the Bank of carrying a loan that is in default. The
Borrower agrees that the Late Charge and Default Rate are reasonable forecasts
of just compensation for anticipated and actual harm incurred by the Bank, and
that the actual harm incurred by the Bank cannot be estimated with certainty and
without difficulty. If, at any time, any of the aforesaid rates shall be finally
determined by any court of competent jurisdiction, governmental agency or
tribunal to exceed the maximum rate of interest permitted by any applicable
laws, then, for such time as such rate would be deemed excessive, application
thereof shall be suspended and there shall be charged in lieu thereof the
maximum rate of interest permissible under such laws.
7. Prepayment. The Borrower shall have the right to prepay at any time and from
time to time, in whole or in part, without penalty, any advance hereunder which
is accruing interest under the Base Rate Option. If the Borrower prepays
(whether voluntary, on default or otherwise) all or any part of any advance
which is accruing interest under the Euro-Rate Option on other than the last day
of the applicable Euro-Rate Interest Period the Borrower shall pay to the Bank,
on demand therefor, all amounts due pursuant to paragraph 8 below, including the
Cost of Prepayment, if any.
8. Yield Protection. The Borrower shall pay to the Bank, on written demand
therefor, together with the written evidence of the justification therefor, all
direct costs incurred, losses suffered or payments made by Bank by reason of any
change in law or regulation or its interpretation imposing any reserve, deposit,
allocation of capital, or similar requirement (including without limitation,
Regulation D of the Board of Governors of the Federal Reserve System) on the
Bank, its holding company or any of their respective assets. In addition, the
Borrower agrees to indemnify the Bank against any liabilities, losses or
expenses (including loss of margin, any loss or expense sustained or incurred in
liquidating or employing deposits from third parties, and any loss or expense
incurred in connection with funds acquired to effect, fund or maintain any
advance (or any part thereof) bearing interest under the Euro-Rate Option) which
the Bank sustains or incurs as a consequence of either (i) the Borrower's
failure to make a payment on the due date thereof, (ii) the Borrower's
revocation (expressly, by later inconsistent notices or otherwise) in whole or
in part of any notice given to Bank to request, convert, renew or prepay any
advance, or (iii) the Borrower's payment, prepayment or conversion of any
advance bearing interest under the Euro-Rate Option on a day other than the last
day of the applicable Euro-Rate Interest Period including but not limited to the
Cost of Prepayment. "Cost of Prepayment" means an amount equal to the present
value, if positive, of the product of (a) the difference between (i) the yield,
on the beginning date of the applicable interest period, of a U.S. Treasury
obligation with a maturity similar to the applicable interest period minus (ii)
the yield, on the prepayment date, of a U.S. Treasury obligation with a maturity
similar to the remaining maturity of the applicable interest period, and (b) the
principal amount to be prepaid, and (c) the number of years, including
fractional years from the prepayment date to the end of the applicable interest
period. The yield on any U.S. Treasury obligation shall be determined by
reference to Federal Reserve Statistical Release H.15(519) "Selected Interest
Rates". For purposes of making present value calculations, the yield to maturity
of a similar maturity U.S. Treasury obligation on the prepayment date shall be
deemed the discount rate. The Cost of Prepayment shall also apply to any
payments made after acceleration of the maturity of this Note. The Bank's
determination of an amount payable under this paragraph shall, in the absence of
manifest error, be conclusive and shall be payable on demand.
9. Other Loan Documents. This Note is issued in connection with a letter
agreement or loan agreement between the Borrower and the Bank dated on or before
the date hereof, and the other agreements and documents executed in connection
therewith or referred to therein, the terms of which are incorporated herein by
reference (as amended, modified or renewed from time to time, collectively the
"Loan Documents"), and is secured by the property described in the Loan
Documents (if any) and by such other collateral as previously may have been or
may in the future be granted to the Bank to secure this Note. This Note amends
and restates the Master Advance Note dated July 5, 2000 and is being executed,
inter alia, to evidence a decrease in the Facility and a revision in rates of
interest.
10. Events of Default. The occurrence of any of the following events will be
deemed to be an "Event of Default" under this Note: (i) the nonpayment of any
principal, interest or other indebtedness under this Note when due; (ii) the
occurrence of any event of default or default and the lapse of any notice or
cure period under any Loan Document or any other debt, liability or obligation
to the Bank of any Obligor; (iii) the filing by or against any Obligor of any
proceeding in bankruptcy, receivership, insolvency, reorganization, liquidation,
conservatorship or similar proceeding (and, in the case of any such proceeding
instituted against any Obligor, such proceeding is not dismissed or stayed
within 30 days of the commencement thereof, provided that the Bank shall not be
obligated to advance additional funds during such period); (iv) any assignment
by any Obligor for the benefit of creditors, or any levy, garnishment,
attachment or similar proceeding is instituted against any property of any
Obligor held by or deposited with the Bank; (v) a default with respect to any
other indebtedness of any Obligor for borrowed money, if the effect of such
default is to cause or permit the acceleration of such debt; (vi) the
commencement of any foreclosure or forfeiture proceeding, execution or
attachment against any collateral securing the obligations of any Obligor to the
Bank; (vii) the entry of a final judgment against any Obligor and the failure of
such Obligor to discharge the judgment within ten days of the entry thereof;
(viii) if this Note or any guarantee executed by any Guarantor is secured, the
failure of any Obligor to provide the Bank with additional collateral if in the
Bank's opinion at any time or times, the market value of any of the collateral
securing this Note or any guarantee has depreciated below that required pursuant
to the Loan Documents (if any) or, if no specific value is so required, then in
an amount deemed material by the Bank; (ix) any material adverse change in any
Obligor's business, assets, operations, financial condition or results of
operations; (x) any Obligor ceases doing business as a going concern; (xi) the
revocation or attempted revocation, in whole or in part, of any guarantee by any
Guarantor; (xii) the death, incarceration, indictment or legal incompetency of
any individual Obligor or, if any Obligor is a partnership or limited liability
company, the death, incarceration, indictment or legal incompetency of any
individual general partner or member; (xiii) any representation or warranty made
by any Obligor to the Bank in any Loan Document, or any other documents now or
in the future evidencing or securing the obligations of any Obligor to the Bank,
is false, erroneous or misleading in any material respect; or (xiv) any
Obligor's failure to observe or perform any covenant or other agreement with the
Bank contained in any Loan Document or any other documents now or in the future
evidencing or securing the obligations of any Obligor to the Bank. As used
herein, the term "Obligor" means any Borrower and any Guarantor, and the term
"Guarantor" means any guarantor of the Borrower's obligations to the Bank
existing on the date of this Note or arising in the future.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no
further obligation to make advances hereunder; (b) if an Event of Default
specified in clause (iii) or (iv) above shall occur, the outstanding principal
balance and accrued interest hereunder together with any additional amounts
payable hereunder shall be immediately due and payable without demand or notice
of any kind; (c) if any other Event of Default shall occur, the outstanding
principal balance and accrued interest hereunder together with any additional
amounts payable hereunder, at the Bank's option and without demand or notice of
any kind, may be accelerated and become immediately due and payable; (d) at the
Bank's option, this Note will bear interest at the Default Rate from the date of
the occurrence of the Event of Default; and (e) the Bank may exercise from time
to time any of the rights and remedies available under the Loan Documents or
under applicable law.
11. Right of Setoff. In addition to all liens upon and rights of setoff against
the Borrower's money, securities or other property given to the Bank by law, the
Bank shall have, with respect to the Borrower's obligations to the Bank under
this Note and to the extent permitted by law, a contractual possessory security
interest in and a contractual right of setoff against, and the Borrower hereby
assigns, conveys, delivers, pledges and transfers to the Bank all of the
Borrower's right, title and interest in and to, all of the Borrower's deposits,
moneys, securities and other property now or hereafter in the possession of or
on deposit with, or in transit to, the Bank, whether held in a general or
special account or deposit, whether held jointly with someone else, or whether
held for safekeeping or otherwise, excluding, however, all XXX, Xxxxx, and trust
accounts. Every such security interest and right of setoff may be exercised at
any time without demand upon or notice to the Borrower. Every such right of
setoff shall be deemed to have been exercised immediately upon the occurrence of
an Event of Default hereunder without any action of the Bank, although the Bank
may enter such setoff on its books and records at a later time.
12. Miscellaneous. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing (except as may
be agreed otherwise above with respect to borrowing requests) and will be
effective upon receipt. Such notices and other communications may be
hand-delivered, sent by facsimile transmission with confirmation of delivery and
a copy sent by first-class mail, or sent by nationally recognized overnight
courier service, to the addresses for the Bank and the Borrower set forth above
or to such other address as either may give to the other in writing for such
purpose. No delay or omission on the Bank's part to exercise any right or power
arising hereunder will impair any such right or power or be considered a waiver
of any such right or power, nor will the Bank's action or inaction impair any
such right or power. No modification, amendment or waiver of any provision of
this Note nor consent to any departure by the Borrower therefrom will be
effective unless made in a writing signed by the Bank. The Borrower agrees to
pay on demand, to the extent permitted by law, all costs and expenses incurred
by the Bank in the enforcement of its rights in this Note and in any security
therefor, including without limitation reasonable fees and expenses of the
Bank's counsel. If any provision of this Note is found to be invalid by a court,
all the other provisions of this Note will remain in full force and effect. The
Borrower and all other makers and indorsers of this Note hereby forever waive
presentment, protest, notice of dishonor and notice of non-payment. The Borrower
also waives all defenses based on suretyship or impairment of collateral. If
this Note is executed by more than one Borrower, the obligations of such persons
or entities hereunder will be joint and several. This Note shall bind the
Borrower and its heirs, executors, administrators, successors and assigns, and
the benefits hereof shall inure to the benefit of the Bank and its successors
and assigns; provided, however, that the Borrower may not assign this Note in
whole or in part without the Bank's written consent and the Bank at any time may
assign this Note in whole or in part.
This Note has been delivered to and accepted by the Bank and will be deemed to
be made in the State where the Bank's office indicated above is located. THIS
NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE
BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S
OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The
Borrower hereby irrevocably consents to the exclusive jurisdiction of any state
or federal court in the county or judicial district where the Bank's office
indicated above is located; provided that nothing contained in this Note will
prevent the Bank from bringing any action, enforcing any award or judgment or
exercising any rights against the Borrower individually, against any security or
against any property of the Borrower within any other county, state or other
foreign or domestic jurisdiction. The Borrower acknowledges and agrees that the
venue provided above is the most convenient forum for both the Bank and the
Borrower. The Borrower waives any objection to venue and any objection based on
a more convenient forum in any action instituted under this Note.
13. Additional Provisions.
(a) Upon receipt of an affidavit of an officer of Bank as to
the loss, theft, destruction or mutilation of this Note or any other security
document that is not of public record, and, in the case of any such loss, theft,
destruction or mutilation, upon cancellation of such Note or other security
document, Borrowers will issue, in lieu thereof, a replacement note or other
security document in the same principal amount thereof and otherwise of like
tenor.
(b) This Note will be binding upon and inure to the benefit of
the Borrower and the Bank and their respective heirs, executors, administrators,
successors and assigns; provided, however, that Borrower may not assign this
Note in whole or in part without the Bank's prior written consent and the Bank
at any time may assign this Note in whole or in part. Without limitation, Bank
may at any time pledge or assign all or any portion of its rights under the
Facility and Loan Documents (including any portion of the Note) to any of the
twelve (12) Federal Reserve Banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341. No such pledge or assignment or enforcement
thereof shall release Bank from its obligations under any of the Loan Documents.
Bank shall have the unrestricted right at any time and from time to time, and
without the consent of or notice to Borrower or any Guarantor, to grant to one
or more banks or other financial institutions (each, a "Participant")
participating interests in any or all of the loans held by Bank hereunder. In
the event of any such grant by Bank of a participating interest to a
Participant, whether or not upon notice to Borrower, Bank shall remain
responsible for the performance of its obligations hereunder and Borrower shall
continue to deal solely and directly with Bank in connection with Bank's rights
and obligations hereunder. Bank may furnish any information concerning Borrower
in its possession from time to time to prospective Participants, provided that
Bank shall require any such prospective Participant to agree in writing to
maintain the confidentiality of such information.
14. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions of
this Note, including the waiver of jury trial, and has been advised by counsel
as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first
written above, with the intent to be legally bound hereby.
WITNESS / ATTEST: COMTREX SYSTEMS CORPORATION
By: /s/ By: /s/
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(SEAL)
Print Name: Xxxxxxx X. Xxxxxx Print Name: Xxxxxxx X. Xxxx
-------------------------------------------- -----------------------------------------
Title: Assistant Secretary Title: President/CEO
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