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EXHIBIT 10.2
REVOLVING CREDIT NOTE
$1,500,000.00 JUNE 1, 2001
FOR VALUE RECEIVED, the undersigned, CELERIS CORPORATION a Minnesota
corporation, and X.X. XXXXXXXX & ASSOCIATES, INC., a Maryland corporation
(collectively, "Borrower"), jointly and severally, promise to pay, in lawful
money of the United States, to the order of XXXXXX HEALTHCARE FINANCE, INC. a
Delaware corporation ("Lender"), the principal sum of ONE MILLION FIVE HUNDRED
THOUSAND and No/100 Dollars ($1,500,000.00), or so much of such principal sum as
shall be advanced or readvanced and shall remain unpaid under the Loan
established pursuant to that certain Loan and Security Agreement between the
undersigned and Lender (as amended, modified, restated or replaced from time to
time, the "Loan Agreement"), plus interest on the unpaid balance thereof,
computed on a 360-day basis, at the rate per annum that is set forth in the Loan
Agreement.
1. All capitalized terms used and not otherwise specifically
defined in this Revolving Credit Note (as amended, modified, restated or
replaced from time to time, the "Note") shall have the meanings given to them in
the Loan Agreement.
2. This Note shall evidence the undersigned's obligation to repay
all sums advanced by Xxxxxx from time to time under the Loan Agreement and as
part of the Loan. The actual amount due and owing from time to time under this
Note shall be evidenced by Xxxxxx's records of receipt and disbursements with
respect to the Loan, which shall be conclusive evidence of that amount, absent
manifest error.
3. Interest due pursuant to this Note shall be payable monthly,
in arrears, on the first Business Day of each month after the date of this Note
(for the previous month). For purposes of this Note, a "Business Day" shall mean
any day on which banks are open for business in Maryland, excluding Saturdays
and Sundays.
4. This Note shall become due and payable upon the earlier to
occur of (i) the expiration of the Term, or (ii) the occurrence of any Event of
Default under the Loan Agreement, or any other event under any other Loan
Documents which would result in this Note becoming due and payable. At such
time, the entire principal balance of this Note and all other fees, costs and
expenses, if any, shall be due and payable in full. Xxxxxx shall then have the
option at any time and from time to time to exercise all of the rights and
remedies set forth in this Note and in the other Loan Documents, as well as all
rights and remedies otherwise available to Lender at law or in equity, to
collect the unpaid indebtedness under this Note and the other Loan
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Documents. This Note is secured by the Collateral, as defined in and
described in the Loan Agreement.
5. Whenever any principal and/or interest and/or fee under this
Note shall not be paid when due, whether at the stated maturity or by
acceleration, interest on such unpaid amounts shall thereafter be payable at a
rate per annum equal to four (4) percentage points above the stated rate of
interest on this Note until such amounts shall be paid.
6. The undersigned and Lender intend to conform strictly to the
applicable usury laws in effect from time to time during the term of the Loan.
Accordingly, if an transaction contemplated by the Loan Agreement or this Note
would be usurious under such laws, then notwithstanding any other provision
hereof: (i) the aggregate of all interest that is contracted for, charged, or
received under this Note or under any other Loan Document shall not exceed the
maximum amount of interest allowed by applicable law, and any excess shall be
promptly credited to the undersigned by Xxxxxx (or, to the extent that such
consideration shall have been paid, such excess shall be promptly refunded to
the undersigned by Xxxxxx); (ii) neither the undersigned nor any other Person
(as defined in the Loan Agreement) now or hereafter liable hereunder shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the maximum interest permitted by applicable law; and (iii) the effective
rate of interest shall be reduced to the Highest Lawful Rate (as defined in the
Loan Agreement). All sums paid, or agreed to be paid, to Lender for the use,
forbearance, and detention of the debt of Borrower to Lender shall, to the
extent permitted by applicable law, be allocated throughout the full term of
this Note until payment is made in full so that the actual rate of interest does
not exceed the Highest Lawful Rate in effect at any particular time during the
full term thereof. If at any time the rate of interest under this Note exceeds
the Highest Lawful Rate, the rate of interest to accrue pursuant to this Note
shall be limited, notwithstanding anything to the contrary in this Note, to the
Highest Lawful Rate, but any subsequent reductions in the Base Rate shall not
reduce the interest to accrue pursuant to this Note below the Highest Lawful
Rate until the total amount of interest accrued equals the amount of interest
that would have accrued if a varying rate per annum equal to the interest rate
under the Note had at all times been in effect. If the total amount of interest
paid or accrued pursuant to this Note under the foregoing provisions is less
than the total amount of interest that would have accrued if a varying rate per
annum equal to the interest rate under this Note had been in effect, then the
undersigned agrees to pay to Lender an amount equal to the difference between
(x) the lesser of (A) the amount of interest that would have accrued if the
Highest Lawful Rate had at all times been in effect, or (B) the amount of
interest that would have accrued if a varying rate per annum equal to the
interest rate under the Note had at all times been in effect, and (y) the amount
of interest accrued in accordance with the other provisions of this Note and the
Loan Agreement.
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7. This Note is the "Note" referred to in the Loan Agreement, and
is issued pursuant to the Loan Agreement. Reference is made to the Loan
Agreement for a statement of the additional rights and obligations of the
undersigned and Lender. In the event of any conflict between the terms of this
Note and the terms of the Loan Agreement, the terms of the Loan Agreement shall
prevail. All of the terms, covenants, provisions, conditions, stipulations,
promises and agreements contained in the Loan Documents to be kept, observed
and/or performed by the undersigned are made a part of this Note and are
incorporated into this Note by this reference to the same extent and with the
same force and effect as if they were fully set forth in this Note; the
undersigned promises and agrees to keep, observe and perform them or cause them
to be kept, observed and performed, strictly in accordance with the terms and
provisions thereof.
8. Each party liable on this Note in any capacity, whether as
maker, endorser, surety, guarantor or otherwise, (i) waives presentment for
payment, demand, protest and notice of presentment, notice of protest, notice of
non-payment and notice of dishonor of this debt and each and every other notice
of any kind respecting this Note and all lack of diligence or delays in
collection or enforcement hereof; (ii) agrees that Lender at any time or times,
without notice to the undersigned or its consent, may grant extensions of time,
without limit as to the number of the aggregate period of such extensions, for
the payment of any principal, interest or other sums due hereunder; (iii) to the
extent permitted by law, waives all exemptions under the laws of the State of
Maryland and/or any state or territory of the United States; (iv) to the extent
permitted by law, waives the benefit of any law or rule of law intended for its
advantage or protection as an obligor under this Note or providing for its
release or discharge from liability on this Note, in whole or in part, on
account of any facts or circumstances other than full and complete payment of
all amounts due under this Note; and (v) agrees to pay, in addition to all other
sums of money due, all cost of collection and attorney's fees, whether suit be
brought or not, if this Note is not paid in full when due, whether at the stated
maturity or by acceleration.
9. No waiver by Lender of any one or more defaults by the
undersigned in the performance of any of its obligations under this Note shall
operate or be construed as a waiver of any future default or defaults, whether
of a like or different nature. No failure or delay on the part of Lender in
exercising any right, power or remedy under this Note (including, without
limitation, the right to declare this Note due and payable) shall operate as a
waiver of such right, power or remedy nor shall any single or partial exercise
of any such right, power or remedy preclude any other or further exercise of
such right, power or remedy or the exercise of any other right, power or remedy.
10. If any term, provision, covenant or condition of this Note or
the application of any term, provision, covenant or condition of this Note to
any party or circumstance shall be found
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by a court of competent jurisdiction to be, to any extent, invalid or
unenforceable, then the remainder of this Note and the application of such term,
provision, covenant, or condition to parties or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected thereby,
and each term, provision, covenant or condition shall be valid and enforced to
the fullest extent permitted by law. Upon determination that any such term,
provision, covenant or condition is invalid, illegal or unenforceable, Lender
may, but is not obligated to, advance funds to Borrower under this Note until
Borrower and Lender amend this Note so as to effect the original intent of the
parties as closely as possible in a valid and enforceable manner.
11. No amendment, supplement or modification of this Note nor any
waiver of any provision of this Note shall be made except in writing executed by
the party against whom enforcement is sought.
12. This Note shall be binding upon the undersigned and its
successors and assigns. Notwithstanding the foregoing, the undersigned may not
assign any of its rights or delegate any of its obligations under this Note
without the prior written consent of Lender, which may be withheld in its sole
discretion.
13. Each entity constituting Borrower shall be jointly and
severally liable for all of the obligations of Borrower under this Note.
14. THIS NOTE IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT RESPECT TO ANY OTHERWISE
APPLICABLE CONFLICTS-OF-LAWS PRINCIPLES, BOTH AS TO INTERPRETATION AND
PERFORMANCE, AND THE PARTIES EXPRESSLY CONSENT AND AGREE TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF MARYLAND AND THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MARYLAND AND TO THE LAYING OF VENUE IN THE
STATE OF MARYLAND, WAIVING ALL CLAIMS OR DEFENSES BASED ON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE, INCONVENIENT FORUM OR THE LIKE. BORROWER HEREBY
CONSENTS TO SERVICE OF PROCESS BY MAILING A COPY OF THE SUMMONS TO BORROWER, BY
CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, TO XXXXXXXX'S ADDRESS SET FORTH
IN SECTION 9.4 OF THE LOAN AGREEMENT. BORROWER FURTHER WAIVES ANY CLAIM FOR
CONSEQUENTIAL DAMAGES IN RESPECT OF ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY
LENDER IN GOOD FAITH.
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15. IN ANY LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE
RESOLUTION PROCEEDING RELATING TO THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS,
ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF BORROWER OR OF ITS AFFILIATES
SHALL BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF BORROWER FOR PURPOSES OF
ALL APPLICABLE LAW OR COURT RULES REGARDING THE PRODUCTION OF WITNESSES BY
NOTICE FOR TESTIMONY (WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE). BORROWER
IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE EFFORTS TO PRODUCE IN ANY SUCH
DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN THE MANNER REQUESTED BY
XXXXXX, ALL PERSONS, DOCUMENTS (WHETHER IN TANGIBLE, ELECTRONIC OR OTHER FORM)
OR OTHER THINGS UNDER ITS CONTROL AND RELATING TO THE DISPUTE IN ANY
JURISDICTION THAT RECOGNIZES THAT (OR ANY SIMILAR) DISTINCTION.
16. THE UNDERSIGNED HEREBY (A) COVENANTS AND AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (B) WAIVES ANY RIGHT
TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY
BY THE UNDERSIGNED, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE
ACCRUE. XXXXXX IS HEREBY AUTHORIZED AND REQUESTED TO SUBMIT THIS NOTE TO ANY
COURT HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO, SO AS
TO SERVE AS CONCLUSIVE EVIDENCE OF THE UNDERSIGNED'S WAIVER OF THE RIGHT TO JURY
TRIAL. FURTHER, THE UNDERSIGNED HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF LENDER (INCLUDING XXXXXX'S COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
TO ANY BORROWER THAT LENDER WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, intending to be legally bound, and intending that
this Note constitutes an instrument executed under seal, the Borrower has caused
this Note to be executed under seal as of the date first written above.
BORROWER:
CELERIS CORPORATION
a Minnesota corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
X.X. XXXXXXXX & ASSOCIATES, INC., a
Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
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