Mellon Bank
AMENDED AND RESTATED
SUPPLEMENT TO NOTE AND SECURITY AGREEMENT
This Amended and Restated Supplement to Note and Security Agreement (this
"Supplement") is annexed to and is part of the Amended and Restated Note and
Security Agreement dated to be effective as of June 21, 1995, of Undersigned
payable to MELLON BANK, N.A. ("Bank") in the stated principal amount of
TWENTY-THREE MILLION DOLLARS ($23,000,000). Such Amended and Restated Note and
Security Agreement, as supplemented by this Supplement, shall be referred to as
the "Note".
1. Payment. Principal on the Note shall be due and payable on October 31, 1995.
Accrued interest on the Prime Rate Portion and the ABS Rate Portion shall be due
and payable on the last Business Day of each calendar month after the date
hereof and on October 31, 1995. Interest on each Rate Segment of the Euro-Rate
Portion shall be due and payable on the last day of the corresponding Rate
Period. After maturity of any part of the Note (by acceleration or otherwise),
interest on such part of the Note shall be due and payable on demand.
2. Interest Rate. The unpaid principal amount of the Note shall bear interest
for each day until due on one or more bases selected by Undersigned from among
the Interest Rate Options set forth below. Undersigned understands and agrees:
(a) that Bank may in its sole discretion from time to time determine that the
right of Undersigned to select, convert to or renew the Prime Rate Option or the
Euro-Rate Option is not available and (b) that subject to the provisions of this
Supplement Undersigned may select any number of Options to apply simultaneously
to different parts of the unpaid principal amount of the Note and may select any
number of Rate Segments to apply simultaneously to different parts of the
Euro-Rate Portion.
Available Interest Rate Options
Prime Rate Option: A rate, per annum (computed on the basis of a year of 360
days and actual days elapsed) for each day equal to the Prime Rate.
Euro-Rate Option: For each Rate Segment of the Euro-Rate Portion, a rate per
annum (computed on the basis of a year of 360 days and actual days elapsed) for
each day equal to the Euro-Rate for such Rate Segment for such day plus 135
Basis Points.
ABS-Rate Option: A rate per annum (computed on the basis of a year of 360 days,
as the case may be) for each day equal to the ABS Rate for such day plus 135
Basis Points.
3. Rate Periods. At any time when Undersigned selects, converts to or renews the
Euro-Rate option, Undersigned shall fix a period (the "Rate Period") which shall
be one, two, or three months, which shall be acceptable to Bank in Bank's sole
discretion, during which the Euro-Rate Option shall apply to the Corresponding
Rate Segment. Bank's right to payment of principal and interest under the Note
shall in no way be affected by the fact that one or more Rate Periods may be in
effect.
4. Amounts. Every selection of, conversion to or renewal of the EuroRate
Option shall be in a principal amount selected by Undersigned and acceptable
to Bank in Bank's sole discretion.
5. Interest After Maturity. After the principal amount of any part of the Prime
Rate Portion or the ABS-Rate Portion shall have become due and payable, such
amount shall bear interest for each day until paid (before and after judgment)
at a rate per annum (based on a 360-day year and actual days elapsed) which for
each day shall be the greater of (a) 2% above the Prime Rate Option on the day
such amount became due and (b) 2% above the Prime Rate option, such interest
rate to change automatically from time to time effective as of the effective
date of each change in the Prime Rate. After the principal amount of any part of
the Euro-Rate Portion shall have become due and payable, such amount shall bear
interest for each day until paid (before and after judgment) (a) until the end
of the applicable then-current Rate Period at a rate per annum 2% above the
Euro-Rate Option otherwise applicable to such part and (b) thereafter in
accordance with the previous sentence.
6. Late Payment Charge. If any payment (including without limitation any
regularly scheduled payment, balloon payment and final payment) is not paid
within 25 days after it is due, Undersigned will pay a late charge equal to 5%
of the entire payment due (regardless of whether part of the payment due had
been made, and regardless of whether the payment due consists of principal and
interest, principal only or interest only). (Such late charge will be in
addition to any increase made to the interest rate(s) applicable to the
outstanding balance hereof as a result of maturity of this Note or otherwise, as
well as in addition to any other applicable fees, charges and costs.) Also, Bank
reserves the right to modify, in its sole discretion and upon thirty (30) days
prior written notice to Undersigned, the late charge set forth herein.
7. Selection, Conversion or Renewal of Rate Options. Subject to the other
provisions of this Supplement, Undersigned may select any interest rate Option
to apply to the initial borrowing evidenced by the Note. Subject to the other
provisions of this Supplement, Undersigned may convert any part of the unpaid
principal amount of the Note from any interest rate option to the other interest
rate Option(s): (a) at any time with respect to conversion from the Prime Rate
Option or the ABS-Rate Option to any other interest rate Option and (b) at the
expiration of any Rate Period with respect to conversion from or renewals of the
Euro-Rate Option as to the Rate Segment corresponding to such expiring Rate
Period. Whenever Undersigned desires to select, convert or renew the Euro-Rate
Option Undersigned shall give Bank Standard Notice thereof (which shall be
irrevocable), specifying the date, amount and type of the proposed new Rate
Option. If such notice has been duly given, and if Bank in its sole discretion
approves the proposed selection, conversion or renewal, on and after the date
specified in such notice interest shall be calculated upon the unpaid principal
amount of the Note taking into account such selection, conversion or renewal.
8. Prime Rate Fallback. If any Rate Period expires, any part of the Rate Segment
corresponding to such Rate Period which has not been converted or renewed in
accordance with Section 6 hereof automatically shall be converted to the Prime
Rate Option. If Undersigned fails to select, or if Bank fails to approve, an
interest rate Option to apply to the initial borrowing evidenced by the Note,
such initial borrowing shall be deemed to be at the Prime Rate Option. If at any
time the Bank shall have determined in good faith (which determination shall be
conclusive) that the accrual of interest at any of the Interest Rate options has
been made impractical or unlawful by compliance with the Bank in good faith with
any law (including common law), constitution, statute, treaty, regulation, rule,
ordinance, order, injunction, writ, decree or award of any government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court, tribunal,
grand jury or arbitrator, in each case whether foreign or domestic, or
administration thereof by any official body charged with the interpretation or
administration thereof or with any request or directive of any such official
body (whether or not having the force of law), then, and in any such event, the
outstanding principal amount of this Note subject to such Interest Rate Option
shall accrue interest at the Prime Rate Option and the Undersigned shall not
have the right to select such Interest Rate Option.
9. Prepayments. Undersigned shall have the right at its option from time to time
to prepay the Prime Rate Portion or the ABS-Rate Portion in whole or in part.
Prepayments shall be applied first, against any amount, other than principal or
interest, which may be due and payable under this Note or under any of the
documents executed and delivered by Undersigned in connection herewith; then,
against unpaid interest due and payable at the time of such prepayment; then
against any accrued and unpaid interest; then against any outstanding principal
amount. Undersigned shall have no right to prepay any part of the Euro-Rate
Portion at any time without the prior written consent of Bank except that
Undersigned may prepay any part of any Rate Segment at the expiration of the
Rate Period corresponding to such Rate Segment. Prepayments shall be made by
giving the Bank Standard Notice thereof (which shall be irrevocable), specifying
the date, and amount and type of prepayment, and upon such date the amount so
specified and accrued interest thereon shall be due and payable.
10. Indemnity. Undersigned shall indemnify Bank against any loss or
expense (including loss of margin) which Bank has sustained or incurred as a
consequence of:
(i) payment, prepayment or conversion of any part of any Rate Segment of the
Euro-Rate Portion on a day other than the last day of the corresponding Rate
Period (whether or not any such payment is pursuant to demand by Bank under the
Note and whether or not any such payment, prepayment or conversion is consented
to by Bank, unless Bank shall have expressly waived such indemnity in writing);
(ii) attempt by Undersigned to revoke in whole or part any irrevocable notice
given pursuant to Section 6 of this Supplement; or
(iii) breach of or default by any obligor in the performance or observance of
any covenant or condition contained in the Note or any separate security,
guarantee or suretyship agreement between Bank and any Obligor.
If Bank sustains any such loss or expense it shall from time to time notify
Undersigned of the amount determined in good faith by Bank (which determination
shall be conclusive) to be necessary to indemnify Bank for such loss or expense.
Such amount shall be due and payable by Undersigned on demand.
11. Records. The unpaid principal amount of the Note, the unpaid interest
accrued thereon, the interest rate or rates applicable to such unpaid principal
amount, the duration of such applicability and the date and amount of each
payment or demand shall at all times be ascertained from the books and records
created by Bank, which shall be conclusive absent manifest error.
12. Notices. All notices under Sections 6 or 8 of this Supplement shall be in
writing or by telephone promptly confirmed in writing, and all such writings
shall be sent by first-class, first-class express or certified mail or by hand
delivery, in all cases with charges prepaid. All notices shall be sent to the
applicable party at the address stated on the signature page hereof or in
accordance with the last unrevoked written direction from such party to the
other parties hereto. All notices by Undersigned shall be effective when
received by Bank and all notices by Bank shall be effective when telephoned,
deposited in the mail or hand delivered. Written notices or confirmations by
Undersigned shall not be deemed records of Bank within the meaning of section 10
of this Supplement whether or not received by Bank. Bank may conclusively rely
without inquiry on any notice or confirmation purporting to be from or
authorized by Undersigned.
13. Definitions. As used in this Supplement:
"Business Day" shall mean any day on which Bank is open for business at the
location where the Note is payable.
"Euro-Rate Reserve Percentage" for any day shall mean the percentage (rounded
upward to the nearest 1/100 of 1%), as determined in good faith by Bank (which
determination shall be conclusive) as representing for such day the maximum
effective reserve requirement (including without limitation supplemental,
marginal and emergency requirements) for member banks of the Federal Reserve
System with respect to eurocurrency funding (currently referred to as
"Eurocurrency liabilities") of any maturity. Each Euro-Rate shall be adjusted
automatically as of the effective date of any change in the Euro-Rate Reserve
Percentage.
"Euro-Rate" for any day for any proposed or existing Rate Segment corresponding
to a Rate Period shall mean the rate per annum determined by Bank to be the rate
per annum obtained by dividing (the resulting quotient to be rounded upward to
the nearest 1/100 of 1%) (A) the rate of interest (which shall be the same for
each day in such Rate Period estimated in good faith by Bank in accordance with
its usual procedures (which determination shall be conclusive) to be the average
of the rates per annum for deposits in United States dollars offered to major
money center banks in the London interbank market at approximately 11:00 a.m.,
London time, two London Business Days prior to the first day of such Rate Period
for delivery on the first day of such Rate Period in amounts comparable to such
Rate Segment (or, if there are no such comparable amounts actively traded, the
smallest amounts actively traded) and having maturity comparable to such Rate
Period by (B) a number equal to 1.00 minus the Euro-Rate Reserve Percentage for
such day.
The "Euro-Rate" may also be expressed by the following formula:
average of rates offered to major
money banks in the London inter-
bank market estimated by the Bank
Euro-Rate = as set forth in (A) above
1.00 - Euro-Rate Reserve Percentage
"London Business Day" shall mean a day for dealing in deposits in United States
dollars by and among banks in the London interbank market.
"Portion": "Prime Rate Portion" or "ABS-Rate Portion" shall mean at any time the
part, including the whole, of the unpaid principal amount of the Note bearing
interest at such time under the Prime Rate Option or the ABS Rate Portion or in
accordance with the first sentence of Section 5 of this Supplement. "Euro-Rate
Portion" shall mean at any time, the part, including the whole, of the unpaid
principal amount of the Note bearing interest at such time under the Euro-Rate
Option.
"Prime Rate" shall mean the interest rate per annum announced from time to time
by Bank as its Prime Rate. The Prime Rate may be greater or less than other
interest rates charged by Bank to other borrowers and is not solely based or
dependent upon the interest rate which Bank may charge any particular borrower
or class of borrowers.
"Standard Notice" shall mean an irrevocable notice provided to the Bank on a
Business Day which is:
(i) on the same Business Day in the case of selection of, conversion to or
renewal of the Prime Rate Option or ABS-Rate Option or prepayment of
any Prime Rate Portion or ABS-Rate Option; and
(ii) at least two London Business Days in advance in the case of selection
of, conversion to or renewal of the Euro-Rate Option or prepayment of
any Euro-Rate Portion.
Standard Notice must be provided no later than 1:00 o'clock p.m., Pittsburgh
time, on the last day permitted for such notice.
Witness the due execution hereof intending to be legally bound this .21st day of
June, 1995.
Attest/Witness:
/s/Xxxxx X. Xxxxxx
C-COR ELECTRONICS, INC.
/s/Xxxx X. Xxxxxxx
Vice President - Finance
Business Address:
00 Xxxxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
MELLON BANK
/s/Xxxxx X. Xxxxx
Assistant Vice President
Office Address:
X.X. Xxx 00
Xxxxx Xxxxxxx, XX 00000-0000
