Exhibit 10.8
EXHIBIT A-1
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$___________ Date: January 16, 2004
FOR VALUE RECEIVED, the undersigned (hereinafter, together with their
successors in title and assigns, collectively, called the "Borrowers"), by this
promissory note (hereinafter, together with the Schedule annexed hereto, called
"this Note"), absolutely and unconditionally and jointly and severally promise
to pay to the order of ____________ (hereinafter, together with its successors
in title and assigns, called the "Bank"), the principal sum of _____________
___________________________, or so much thereof as shall have been advanced by
the Bank to the Borrowers by way of revolving credit loans under the Loan
Agreement (as hereinafter defined) and shall remain outstanding, such payment to
be made as hereinafter provided, and to pay interest on the principal sum
outstanding hereunder from time to time from the date hereof until the said
principal sum or the unpaid portion thereof shall have become due and payable as
hereinafter provided.
Capitalized terms used herein without definition shall have the meaning set
forth in the Loan Agreement.
The unpaid principal (not at the time overdue) under this Note shall bear
interest at the rate or rates from time to time in effect under the Loan
Agreement. Accrued interest on the unpaid principal under this Note shall be
payable on the dates specified in the Loan Agreement.
On December 31, 2006, the date of the final maturity of this Note, there
shall become absolutely due and payable by the Borrowers hereunder, and the
Borrowers hereby jointly and severally promise to pay to the Bank, the balance
(if any) of the principal hereof then remaining unpaid, all of the unpaid
interest accrued hereon and all (if any) other amounts payable on or in respect
of this Note or the indebtedness evidenced hereby.
Each overdue amount (whether of principal, interest or otherwise) payable
on or in respect of this Note or the indebtedness evidenced hereby shall (to the
extent permitted by applicable law) bear interest at the rates and on the terms
provided by the Loan Agreement. The unpaid interest accrued on each overdue
amount in accordance with the foregoing terms of this paragraph shall become and
be absolutely and jointly and severally due and payable by the Borrowers to the
Bank on demand by the Administrative Agent. Interest on each overdue amount will
continue to accrue as provided by the foregoing terms of this paragraph, and
will (to the extent permitted by applicable law) be compounded daily until the
obligations of the Borrowers in respect of the payment of such overdue amount
shall be discharged (whether before or after judgment).
Each payment of principal, interest or other sum payable on or in respect
of this Note or the indebtedness evidenced hereby shall be made by the Borrowers
directly to the Administrative Agent in dollars, for the account of the Bank, at
the address of the Administrative Agent set forth in the Loan Agreement, on the
due date of such payment, and in immediately available and
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freely transferable funds. All payments on or in respect of this Note or the
indebtedness evidenced hereby shall be made without set-off or counterclaim and
free and clear of and without any deductions, withholdings, restrictions or
conditions of any nature.
This Note is made and delivered by the Borrowers to the Bank pursuant to
the Revolving Credit and Term Loan Agreement, dated as of June 24, 2003, among
(i) the Borrowers, (ii) the Banks and (iii) the Administrative Agent
(hereinafter, as originally executed, and as now or hereafter varied or
supplemented or amended and restated, called the "Loan Agreement"), to which
reference is hereby made for a statement of the terms and conditions (to the
extent not set forth herein) under which the Loans evidenced by this Note were
made and are to be repaid. This Note evidences the joint and several obligation
of the Borrowers (a) to repay the principal amount of the Bank's Commitment
Percentage of the Revolving Credit Loans made by the Banks to the Borrowers
pursuant to the Loan Agreement; (b) to pay interest, as herein and therein
provided, on the principal amount hereof remaining unpaid from time to time; and
(c) to pay other amounts which may become due and payable hereunder or
thereunder as herein and therein provided. The payment of the principal of and
the interest on this Note and the payment of all (if any) other amounts as may
become due and payable on or in respect of this Note are secured by certain
collateral, as evidenced by the Security Documents. Reference is hereby made to
the Loan Agreement (including the EXHIBITS and SCHEDULES annexed thereto) and to
the other Security Documents for a complete statement of the terms thereof and
for a description of such collateral.
The Borrowers will have the right to prepay the unpaid principal of this
Note in full or in part upon the terms contained in the Loan Agreement. The
Borrowers will have an obligation to prepay principal of this Note from time to
time if and to the extent required under, and upon the terms contained in, the
Loan Agreement. Any partial payment of the indebtedness evidenced by this Note
shall be applied in accordance with the terms of the Loan Agreement.
Pursuant to and upon the terms contained in Section 7 of the Loan
Agreement, the entire unpaid principal of this Note, all of the interest accrued
on the unpaid principal of this Note and all (if any) other amounts payable on
or in respect of this Note or the indebtedness evidenced hereby may be declared
to be immediately due and payable, whereupon the entire unpaid principal of this
Note, all of the interest accrued on the unpaid principal of this Note and all
(if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby shall (if not already due and payable) forthwith become and be
due and payable to the Bank without presentment, demand, protest or any other
formalities of any kind, all of which are hereby expressly and irrevocably
waived by the Borrowers, excepting only for notice expressly provided for in the
Loan Agreement.
All computations of interest payable as provided in this Note shall be made
by the Administrative Agent in accordance with the terms of the Loan Agreement.
The interest rate in effect from time to time shall be determined in accordance
with the terms of the Loan Agreement.
Should all or any part of the indebtedness represented by this Note be
collected by action at law, or in bankruptcy, insolvency, receivership or other
court proceedings, or should this Note be placed in the hands of attorneys for
collection after default, the Borrowers hereby promise to
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pay to the holder of this Note, upon demand by the holder hereof at any time, in
addition to principal, interest and all (if any) other amounts payable on or in
respect of this Note or the indebtedness evidenced hereby, all court costs and
reasonable attorneys' fees and all other collection charges and expenses
reasonably incurred or sustained by the holder of this Note.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
Each of the Borrowers and every endorser and guarantor of this Note hereby
irrevocably waives notice of acceptance, presentment, demand, notice of
nonpayment, protest, notice of protest, suit and all other demands, notices and
other conditions precedent in connection with the delivery, acceptance,
performance, default, collection and/or enforcement of this Note or any
collateral or security therefor, except for notices expressly provided for in
the Loan Agreement or any other Loan Document, and assents to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
Each of the Borrowers hereby absolutely and irrevocably consents and
submits, for itself and its property, to the non-exclusive jurisdiction of the
courts of the Commonwealth of Massachusetts or of the United States of America
for the District of Massachusetts in connection with any actions or proceedings
brought against any Borrower by the holder hereof arising out of or relating to
this Note.
THE BORROWERS AND THE BANK MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO
ACCEPT THIS NOTE AND THE MAKE THE LOAN.
This Note is intended to take effect as a sealed instrument. This Note and
the obligations of the Borrowers hereunder shall be governed by and
interpreted and determined in accordance with the laws of the Commonwealth
of Massachusetts.
(Signatures on next page)
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IN WITNESS WHEREOF, this REVOLVING CREDIT NOTE has been duly executed under
seal by the undersigned on the day and in the year first above written in
Boston, Massachusetts.
WITNESS: XXX-XXXX CORPORATION
----------------- By:
----------------------------------------------
Name: Xxxxxxx Xxxx XxxXxxxxx, Xx.
Title: Chairman and Chief Executive Officer
XXX-XXXX SERVICES, INC.
By:
-----------------------------------------------
Name: Xxxxxxx Xxxx XxxXxxxxx, Xx.
Title: President
INTIRION CORPORATION
By:
-----------------------------------------------
Name: Xxxxxxx Xxxx XxxXxxxxx, Xx.
Title: President
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SCHEDULE TO REVOLVING CREDIT NOTE
APPLICABLE
TYPE OF PRIME RATE
LOAN MARGIN OR
(PRIME APPLICABLE
AMOUNT OF RATE OR LIBOR INTEREST INTEREST AMOUNT NOTATION
DATE LOAN LIBOR MARGIN RATE* PERIOD** PAID MADE BY
-------------- ------------ ------------ -------------- ------------ ------------- ------------- ------------
----------
*/ or Prime Rate Loans, insert "Prime Rate plus Applicable Prime Rate Margin"
For LIBOR Loans, insert "LIBOR Rate plus Applicable LIBOR Margin"
**/ or LIBOR Loans only
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