Exhibit 10.12
REVOLVING NOTE
(CANADIAN BORROWERS)
U.S. $_____________ March ___, 2004
FOR VALUE RECEIVED, the undersigned, COMMONWEALTH XXXXXX HOLDINGS LTD.,
a corporation amalgamated under the laws of the Province of Alberta, Canada
("CSH"), CORRPRO CANADA, INC., a corporation amalgamated under the laws of the
Province of Alberta, Canada ("CORRPRO CANADA") and XXXXX INSPECTIONS LTD., a
corporation amalgamated under the laws of the Province of Alberta, Canada
("XXXXX", and together with Corrpro Canada and CSH, collectively, "CANADIAN
BORROWERS"), hereby jointly and severally promise to pay to CAPITALSOURCE
FINANCE LLC, a Delaware limited liability company, as administrative, payment
and collateral agent for the Lenders ("AGENT"), the unpaid principal amount of
all Advances made by Canadian Revolving Lenders to Canadian Borrowers under the
Canadian Revolving Facility, in lawful money of the United States of America in
immediately available funds, with interest thereon, and all other Obligations
related thereto under and pursuant to the Revolving Credit, Term Loan and
Security Agreement dated as of the date hereof among Canadian Borrowers, the
other Credit Parties named therein, Agent and the Lenders party thereto from
time to time (as it may be amended, supplemented or otherwise modified from time
to time, the "LOAN AGREEMENT"), all at the times and in the manner set forth in
the Loan Agreement. Capitalized terms used but not defined herein shall have the
meanings given them in the Loan Agreement.
1. INTEREST AND PAYMENTS.
(a) Canadian Borrowers promise to pay interest on the
outstanding principal amount of Advances under the Canadian Revolving Facility
and this Revolving Note from the date of any Advance until such principal amount
is indefeasibly paid in full in cash. Interest on outstanding Advances under the
Canadian Revolving Facility and this Revolving Note shall be due and payable
monthly in arrears on the first calendar day of each calendar month, commencing
with the month of May 1, 2004, at an annual rate as set forth in the Loan
Agreement, calculated on the basis of a 360-day year and for the actual number
of calendar days elapsed in each interest calculation period.
(b) Payments of interest on outstanding Advances under
the Canadian Revolving Facility and other Obligations related to the Canadian
Revolving Facility may be made, when due, by Advances under the Revolving
Facilities in accordance with the provisions of the Loan Agreement. Any payments
of interest and/or principal or other amounts under this Revolving Note not paid
automatically through Advances under the Canadian Revolving Facility as provided
in the Loan Agreement shall be made only by wire transfer on the date when due,
without offset, deduction or counterclaim, in U.S. Dollars, in immediately
available funds as required in the Loan Agreement. Notwithstanding and without
limiting or being limited by any other provision of this Revolving Note or any
other Loan Document, any payments or prepayments received under this Revolving
Note shall be credited and applied in such manner and order as described in the
Loan Agreement, as adjusted from time to time pursuant to Sections 2.19 and 2.20
of the Loan Agreement.
(c) For purposes of the Interest Act (Canada) and
disclosures thereunder, whenever any interest or any fee to be paid by a
Canadian Borrower hereunder or in connection herewith is to be calculated on the
basis of any period of time that is less than a calendar year, the yearly rate
of interest to which the rate used in such calculation is equivalent is the rate
so used multiplied by the actual number of days in the calendar year in which
the same is to be ascertained and divided by 360. The rates of interest
to be paid under this Note and the Loan Agreement are nominal rates, and not
effective rates or yields. The principle of deemed reinvestment of interest does
not apply to any calculation of interest under this Note or the Loan Agreement.
2. MATURITY.
Unless earlier due and payable in accordance with the Loan
Agreement or accelerated under the Loan Documents, this Revolving Note and the
Canadian Revolving Facility and all Advances shall mature, and all amounts
outstanding hereunder and all other Obligations under the Loan Documents
relating to the Canadian Revolving Facility and Advances, shall become due and
payable in full on the Maturity Date.
3. DEFAULT RATE.
Upon the occurrence and during the continuation of an Event of
Default, the Applicable Rate of interest in effect at such time with respect to
the Obligations shall be increased by the Default Rate.
4. LOAN AGREEMENT.
This Revolving Note is referred to in, made pursuant to, and
entitled to the benefits of, the Loan Agreement. The Loan Agreement, among other
things, (i) provides for the making of Advances under the Canadian Revolving
Facility and this Revolving Note by Canadian Revolving Lenders to Canadian
Borrowers in the aggregate maximum dollar amount first mentioned above, which
amounts may be drawn, repaid and redrawn from time to time as permitted
thereunder, (ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events upon the terms and conditions
therein specified, and (iii) contains provisions defining an Event of Default
and the rights and remedies of the parties thereto. This Revolving Note is a
secured note, entitled to the benefits of and security interests granted in,
among other things, the Loan Agreement and the other Loan Documents.
5. PREPAYMENTS.
This Revolving Note may be prepaid in whole or in part only as
permitted in the Loan Agreement and shall be prepaid, in whole or in part, as
provided or required in the Loan Agreement. No payment or prepayment of any
amount shall entitle any Person to be subrogated to the rights of any Canadian
Revolving Lender hereunder or under the Loan Documents unless and until the
Obligations have been performed in full and indefeasibly paid in full in cash
and the Loan Agreement has been terminated.
6. PAYMENTS DUE ON A DAY OTHER THAN A BUSINESS DAY.
If any payment to be made on or under this Revolving Note is
stated to be due or becomes due and payable on a day other than a Business Day,
the due date thereof shall be extended to, and such payment shall be made on,
the next succeeding Business Day, and such extension of time in such case shall
be included in the computation of payment of any interest (at the interest rate
then in effect during such extension) and/or fees, as the case may be.
7. WAIVERS.
Canadian Borrowers hereby waive set off, counterclaim, demand,
presentment, protest, all defenses with respect to any and all instruments and
all notices and demands of any description.
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8. LAWFUL LIMITS.
This Revolving Note is expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration or otherwise,
shall the interest and other charges paid or agreed to be paid by Canadian
Borrowers for the use, forbearance or detention of money hereunder exceed the
maximum rate permissible under applicable law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto. If, due to
any circumstance whatsoever, fulfillment of any provision hereof, at the time
performance of such provision shall be due, shall exceed any such limit, then
the obligation to be so fulfilled shall be reduced to such lawful limit, and any
interest or any other charges of any kind received which might be deemed to be
interest under applicable law in excess of the maximum lawful rate shall be
applied in accordance with the Loan Agreement.
9. ACKNOWLEDGEMENT OF JOINT AND SEVERAL LIABILITY.
Each of the Canadian Borrowers acknowledges that it is jointly
and severally liable for all of the Canadian Obligations under the Loan
Documents. Each of the Canadian Borrowers expressly understands, agrees and
acknowledges that (a) Canadian Borrowers are all Affiliated entities by common
ownership, (b) each of the Canadian Borrowers desires to have the availability
of one common credit facility instead of separate credit facilities, (c) each of
the Canadian Borrowers has requested that Canadian Revolving Lenders extend such
a common credit facility on the terms herein provided, (d) Canadian Revolving
Lenders will be lending against, and relying on a lien upon, all of Canadian
Borrowers' assets that are pledged as Collateral hereunder, even though the
proceeds of any particular loan made hereunder may not be advanced directly to a
particular Canadian Borrower, (e) each of the Canadian Borrowers will
nonetheless benefit by the making of all such loans by Canadian Revolving
Lenders and the availability of a single credit facility of a size greater than
each could independently warrant, and (f) all of the representations,
warranties, covenants, obligations, conditions, agreements and other terms
contained in the Loan Documents shall be applicable to and shall be binding upon
each of the Canadian Borrowers.
10. GOVERNING LAW.
This Revolving Note shall be governed by and construed in
accordance with the internal laws of the State of Maryland without giving effect
to its choice of laws provisions.
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[SIGNATURE PAGE TO REVOLVING NOTE (CANADIAN BORROWERS)]
This Revolving Note is executed as of the date first written above.
COMMONWEALTH XXXXXX HOLDINGS
LTD., a corporation amalgamated under the
laws of the Province of Alberta, Canada
By: __________________________________(SEAL)
Name:
Title
CORRPRO CANADA, INC., a corporation
amalgamated under the laws of the Province of
Alberta, Canada
By: __________________________________(SEAL)
Name:
Title
XXXXX INSPECTIONS LTD., a corporation
amalgamated under the laws of the
Province of Alberta, Canada
By: __________________________________(SEAL)
Name:
Title
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