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EXHIBIT 10.4
AMENDED AND RESTATED
REVOLVING CREDIT NOTE
Obligation # __________________
February 17, 1998
Philadelphia, Pennsylvania
$13,000,000
FOR VALUE RECEIVED, and intending to be legally bound hereby, the undersigned
Xxxxxxxx, ECC International Corp., unconditionally promises to pay to the order
of FIRST UNION NATIONAL BANK (the "Bank"), the principal amount of all advances
that are now or may hereafter be made hereunder and that are then outstanding,
together with accrued, unpaid interest thereon and any unpaid costs and expenses
payable hereunder, on October 1, 1998.
A. TERMS OF NOTE.
1. INTEREST PAYMENTS. Interest on the principal balance hereof
shall, except as provided in subpart A.8. below, accrue at
such rates and be payable in accordance with Section A.2. of
that certain Term Loan and Revolving Credit Agreement dated
September 20, 1994 between the Bank and the Borrower, as
amended to date, including by Amendment of even date herewith
(together with any exhibits thereto and amendments and
modifications thereto in effect from time to time, the "Loan
Agreement").
2. COMPUTATION OF INTEREST. Interest hereunder shall be computed
daily on the basis of a year of 360 days for the actual number
of days elapsed. All payments hereunder shall be made in
lawful currency of the United States of America and in
immediately available funds at the Bank's address set forth in
the Loan Agreement or at such other address as the Bank shall
notify the Borrower of in writing.
3. INCORPORATION BY REFERENCE. This Note is the Revolving Credit
Note referred to in the Loan Agreement and is subject to the
terms and conditions thereof, which terms and conditions are
incorporated herein,
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including, without limitation, terms pertaining to
definitions, representations, warranties, covenants, events of
default and remedies. Any capitalized term used herein without
definition shall have the definition contained in the Loan
Agreement.
4. BORROWING REQUESTS; CREDITING OF ACCOUNT. Any request for
borrowing pursuant to this Note shall be made by the Borrower
in writing in the form of a "Notice of Borrowing Under
Revolving Credit" attached hereto as Exhibit A and in
accordance with the terms of the Loan Agreement. Unless
otherwise requested by the Borrower in writing at least one
(1) Business Day prior to the date of a requested advance,
each advance hereunder shall be made by crediting the Account
as defined in the Loan Agreement with the amount of the
advance. All advances made by crediting the Account or any
other account of the Borrower at the Bank shall be
conclusively presumed to have been properly authorized by the
Borrower.
5. BANK RECORDS OF ADVANCE. The Bank may enter in its business
records the date and the amount of each advance, each
conversion from one interest rate basis to another and each
payment made pursuant to this Note and the Loan Agreement. The
Bank's records of such advance, conversion or payment shall,
in the absence of manifest error, be conclusively binding upon
the Borrower. In the event the Bank gives notice or renders a
statement by mailing such notice or statement to the Borrower,
concerning any such advance, conversion or payment, or the
amount of principal and interest due on this Note, the
Borrower agrees that, unless the Bank receives a written
notification of exceptions to this statement within forty-five
(45) calendar days after such statement or notice is mailed,
the statement or notice shall be an account stated, correct
and acceptable and binding upon the Borrower.
6. ADVANCE REQUESTS EXCEEDING MAXIMUM PRINCIPAL AMOUNT. The
Borrower shall not request the Bank to make any advances under
this Note or the Loan Agreement which exceeds the Maximum
Principal Amount set forth in Section A.2.b. of the Loan
Agreement. In the event that the principal balance outstanding
under this Note exceeds at any time the Maximum Principal
Amount, the Borrower shall immediately, and without demand
from the Bank, pay to the Bank the amount in excess thereof,
and the Borrower agrees that until such excess is paid to the
Bank, this Note shall evidence and be enforceable with respect
to any and all amounts outstanding hereunder including such
excess.
7. APPLICATION OF PAYMENTS. All payments received on this Note
shall be applied first to the Bank's fees, costs and expenses
which the Borrower
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is obligated to pay pursuant to the terms hereof and under any
other Loan Document, then to accrued and unpaid interest and
then to principal or such payments may be applied in such
other order as the Bank in its sole discretion shall
determine.
8. DEFAULT RATE. At the Bank's option, interest will be assessed
on any principal which remains unpaid at the maturity of this
Note, whether by acceleration or otherwise, or upon and
following any Event of Default, at a rate which is four
percent (4%) higher than the rate otherwise charged hereunder
(the "Default Rate") provided that at no time shall the
Default Rate exceed the highest rate of interest allowed by
law. Such Default Rate of interest shall also be charged on
the amounts owed by the Borrower to the Bank pursuant to any
judgments entered in favor of Bank in respect of this Note or
any other Loan Document.
9. PREPAYMENT. Prepayment of principal may be made subject to
payment of all amounts required to be paid in connection with
such prepayment as provided in the Loan Agreement.
B. REMEDIES.
1. GENERALLY. Upon and following an Event of Default, the Bank,
at its option, may exercise any and all rights and remedies it
has under this Note, the Loan Agreement and/or the other Loan
Documents and under applicable law, including, without
limitation, the right to charge and collect interest on the
principal portion of the amounts outstanding hereunder at the
Default Rate. Upon and following an Event of Default, the Bank
may proceed to protect and enforce the Bank's rights under any
Loan Document and/or under applicable law by action at law, in
equity, or other appropriate proceeding, including, without
limitation, an action for specific performance to enforce or
aid in the enforcement of any provision contained herein or in
any other Loan Document.
2. REMEDIES CUMULATIVE; NO WAIVER. The remedies hereunder and
under the other Loan Documents are cumulative and concurrent,
and are not exclusive of any other remedies available to the
Bank. No failure or delay on the part of the Bank in the
exercise of any right, power, remedy or privilege shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, remedy or privilege preclude any
other or further exercise thereof, or the exercise of any
other right, power, remedy or privilege.
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C. MISCELLANEOUS.
1. GOVERNING LAW. This Note shall be construed in accordance with
and governed by the substantive laws of the Commonwealth of
Pennsylvania without reference to conflict of laws principles.
2. INTEGRATION. This Note and the other Loan Documents constitute
the sole agreement of the parties with respect to the subject
matter hereof and thereof and supersede all oral negotiations
and prior writings with respect to the subject matter hereof
and thereof.
3. AMENDMENT; WAIVER. No amendment of this Note, and no waiver of
any one or more of the provisions hereof shall be effective
unless set forth in writing and signed by the parties hereto.
4. SUCCESSORS AND ASSIGNS. This Note (i) shall be binding upon
the Borrower and the Bank and their respective successors and
permitted assigns, and (ii) shall inure to the benefit of the
Borrower and the Bank and their respective successors and
permitted assigns; provided, however, that the Borrower may
not assign its rights or obligations hereunder or any interest
herein without the prior written consent of the Bank, and any
such assignment or attempted assignment by the Borrower shall
be void and of no effect with respect to the Bank.
5. SEVERABILITY. The illegality or unenforceability of any
provision of this Note or any instrument or agreement required
hereunder shall not in any way affect or impair the legality
or enforceability of the remaining provisions of this Note or
any instrument or agreement required hereunder. In lieu of any
illegal or unenforceable provision in this Note, there shall
be added automatically as part of this Note a legal and
enforceable provision as similar in terms to such illegal or
unenforceable provision as may be possible.
6. INCONSISTENCIES. The Loan Documents are intended to be
consistent. However, in the event of any inconsistencies among
any of the Loan Documents, such inconsistency shall not affect
the validity or enforceability of each Loan Document. The
Borrower agrees that in the event of any inconsistency or
ambiguity in any of the Loan Documents, the Loan Documents
shall not be construed against any one party but shall be
interpreted consistent with the Bank's policies and
procedures.
7. HEADINGS. The headings of sections and paragraphs have been
included herein for convenience only and shall not be
considered in interpreting this Note.
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8. SCHEDULES. If a Schedule and/or an Exhibit is attached hereto,
the provisions thereof are incorporated herein.
9. JUDICIAL PROCEEDING; WAIVERS.
a. THE BORROWER AGREES THAT ANY SUIT, ACTION OR
PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR
INSTITUTED BY THE BANK OR THE BORROWER OR ANY
SUCCESSOR OR ASSIGN OF THE BANK OR THE BORROWER, ON
OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN
DOCUMENT OR THE DEALINGS OF THE PARTIES WITH RESPECT
HERETO, OR THERETO, SHALL BE TRIED ONLY BY A COURT
AND NOT BY A JURY.
b. THE BANK AND THE BORROWER EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING.
FURTHER, THE BORROWER WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR
IN ADDITION TO, ACTUAL DAMAGES.
c. THE BORROWER ACKNOWLEDGES AND AGREES THAT THIS
SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS
NOTE AND THAT THE BANK WOULD NOT EXTEND CREDIT TO THE
BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION
WERE NOT A PART OF THIS NOTE.
IN WITNESS WHEREOF, the Borrower has duly executed and delivered to the Bank
this Note as of the date first above written.
ATTEST: ECC INTERNATIONAL CORP.
By: /s/ Xxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------------ --------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President, Finance Title: President/CEO
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Telecopier No. (000) 000-0000
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EXHIBIT A
Notice of Borrowing Under Revolving Credit
DATE OF BORROWING:_______________________________
DATE OF NOTE:____________________________________
AMOUNT REQUESTED: $______________________________
INTEREST RATE BASIS:_____________________________
INTEREST PERIOD (IF APPLICABLE):_________________
The Borrower hereby notifies the Bank that it requires a borrowing
("Borrowing") under the Term Loan and Revolving Credit Agreement, dated
September 20, 1994, as amended to date, including by Amendment of even date
herewith (together with any amendments or modifications thereto in effect from
time to time, the "Loan Agreement") established for the Borrower in the amount
set forth above. The Borrowing will be deposited in the Borrower's Account No.
__________________________. In order to induce the Bank to fund such Borrowing,
the Borrower hereby affirms the following:
1. The representations and warranties of the Borrower contained
in the Loan Agreement are correct on and as of the date of
this Notice of Borrowing Under Revolving Credit.
2. No Event of Default (as defined in the Loan Agreement) has
occurred and is continuing.
3. There has been no change in the Borrower's or any Obligor's
condition, financial or otherwise, since the date of the Loan
Agreement, which would have a Material Adverse Effect (as
defined In the Loan Agreement).
4. All of the Loan Documents (as defined in the Loan Agreement)
remain in full force and effect, without modification.
5. Use of Borrowing will be to: ________________________________.
Date: ______________, 19__ ECC INTERNATIONAL CORP.
By:____________________________
Name:
Title:
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AMENDED AND RESTATED
REVOLVING CREDIT NOTE
Obligation # _________________
February 17, 1998
Philadelphia, Pennsylvania
$5,500,000
FOR VALUE RECEIVED, and intending to be legally bound hereby, the undersigned
Xxxxxxxx, ECC SIMULATION LIMITED, unconditionally promises to pay to the order
of FIRST UNION NATIONAL BANK, (the "Bank"), the principal amount of all advances
that are now or may hereafter be made hereunder and that are then outstanding,
together with accrued, unpaid interest thereon and any unpaid costs and expenses
payable hereunder, on October 1, 1998.
A. Terms of Note.
1. INTEREST PAYMENTS. Interest on the principal balance hereof
shall, except as provided in subpart A.8. below, accrue at
such rates and be payable in accordance with Section A.1. of
that certain Revolving Credit Agreement dated September 20,
1994 between the Bank and the Borrower, as amended to date,
including by Amendment of even date herewith (together with
any exhibits thereto and amendments and modifications thereto
in effect from time to time, the "Loan Agreement").
2. COMPUTATION OF INTEREST. Interest hereunder shall be computed
daily in accordance with the Loan Agreement. All payments
hereunder shall be made in lawful currency of the United
States of America or in pounds sterling, as set forth in the
Loan Agreement, and in immediately available funds at the
Bank's address set forth in the Loan Agreement or at such
other address as the Bank shall notify the Borrower of in
writing.
3. INCORPORATION BY REFERENCE. This Note is the Revolving Credit
Note referred to in the Loan Agreement and is subject to the
terms and conditions thereof, which terms and conditions are
incorporated herein, including, without limitation, terms
pertaining to definitions, representations, warranties,
covenants, events of default and remedies.
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Any capitalized term used herein without definition shall have
the definition contained in the Loan Agreement
4. BORROWING REQUESTS; CREDITING OF ACCOUNT. Any request for
borrowing pursuant to this Note shall be made by the Borrower
in writing in the form of a "Notice of Borrowing Under
Revolving Credit" attached hereto as Exhibit A and in
accordance with the terms of the Loan Agreement. Unless
otherwise requested by the Borrower in writing at least five
(5) Business Days prior to the date of a requested advance,
each advance hereunder shall be made by crediting the Account
as defined in the Loan Agreement with the amount of the
advance. All advances made by crediting the Account or any
other account of the Borrower at the Bank shall be
conclusively presumed to have been properly authorized by the
Borrower.
5. BANK RECORDS OF ADVANCE. The Bank may enter in its business
records the date and the amount of each advance, each
conversion from one interest rate basis to another and each
payment made pursuant to this Note and the Loan Agreement. The
Bank's records of such advance, conversion or payment shall,
in the absence of manifest error, be conclusively binding upon
the Borrower. In the event the Bank gives notice or renders a
statement by mailing such notice or statement to the Borrower,
concerning any such advance, conversion or payment, or the
amount of principal and interest due on this Note, the
Borrower agrees that, unless the Bank receives a written
notification of exceptions to this statement within forty-five
(45) calendar days after such statement or notice is mailed,
the statement or notice shall be an account stated, correct
and acceptable and binding upon the Borrower.
6. ADVANCE REQUESTS EXCEEDING MAXIMUM PRINCIPAL AMOUNT. The
Borrower shall not request the Bank to make any advances under
this Note or the Loan Agreement which exceeds the Maximum
Principal Amount set forth in Section A.1.b. of the Loan
Agreement. In the event that the principal balance outstanding
under this Note exceeds at any time the Maximum Principal
Amount, the Borrower shall immediately, and without demand
from the Bank, pay to the Bank the amount in excess thereof,
and the Borrower agrees that until such excess is paid to the
Bank, this Note shall evidence and be enforceable with respect
to any and all amounts outstanding hereunder including such
excess.
7. APPLICATION OF PAYMENTS. All payments received on this Note
shall be applied first to the Bank's fees, costs and expenses
which the Borrower is obligated to pay pursuant to the terms
hereof and under any other Loan Document, then to accrued and
unpaid interest and then to
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principal or such payments may be applied in such other order
as the Bank in its sole discretion shall determine.
8. DEFAULT RATE. At the Bank's option, interest will be assessed
on any principal which remains unpaid at the maturity of this
Note, whether by acceleration or otherwise, or upon and
following any Event of Default, at a rate which is four
percent (4%) higher than the rate otherwise charged hereunder
(the "Default Rate") provided that at no time shall the
Default Rate exceed the highest rate of interest allowed by
law. Such Default Rate of interest shall also be charged on
the amounts owed by the Borrower to the Bank pursuant to any
judgments entered in favor of Bank in respect of this Note or
any other Loan Document
9. PREPAYMENT. Prepayment of principal may be made subject to
payment of all amounts required to be paid in connection with
such prepayment as provided in the Loan Agreement.
B. REMEDIES.
1. GENERALLY. Upon and following an Event of Default, the Bank,
at its option, may exercise any and all rights and remedies it
has under this Note, the Loan Agreement and/or the other Loan
Documents and under applicable law, including, without
limitation, the right to charge and collect interest on the
principal portion of the amounts outstanding hereunder at the
Default Rate. Upon and following an Event of Default, the Bank
may proceed to protect and enforce the Bank's rights under any
Loan Document and/or under applicable law by action at law, in
equity, or other appropriate proceeding, including, without
limitation, an action for specific performance to enforce or
aid in the enforcement of any provision contained herein or in
any other Loan Document.
2. REMEDIES CUMULATIVE; NO WAIVER. The remedies hereunder and
under the other Loan Documents are cumulative and concurrent,
and are not exclusive of any other remedies available to the
Bank. No failure or delay on the part of the Bank in the
exercise of any right, power, remedy or privilege shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, remedy or privilege preclude any
other or further exercise thereof, or the exercise of any
other right, power, remedy or privilege.
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C. MISCELLANEOUS.
1. GOVERNING LAW. This Note shah be construed in accordance with
and governed by the substantive laws of the Commonwealth of
Pennsylvania without reference to conflict of laws principles.
2. INTEGRATION. This Note and the other Loan Documents constitute
the sole agreement of the parties with respect to the subject
matter hereof and thereof and supersede all oral negotiations
and prior writings with respect to the subject matter hereof
and thereof.
3. AMENDMENT; WAIVER. No amendment of this Note, and no waiver of
any one or more of the provisions hereof shall be effective
unless set forth in writing and signed by the parties hereto.
4. SUCCESSORS AND ASSIGNS. This Note (i) shall be binding upon
the Borrower and the Bank and their respective successors and
permitted assigns, and (ii) shall inure to the benefit of the
Borrower and the Bank and their respective successors and
permitted assigns; provided, however, that the Borrower may
not assign its rights or obligations hereunder or any interest
herein without the prior written consent of the Bank, and any
such assignment or attempted assignment by the Borrower shall
be void and of no effect with respect to the Bank.
5. SEVERABILITY. The illegality or unenforceability of any
provision of this Note or any instrument or agreement required
hereunder shall not in any way affect or impair the legality
or enforceability of the remaining provisions of this Note or
any instrument or agreement required hereunder. In lieu of any
illegal or unenforceable provision in this Note, there shall
be added automatically as part of this Note a legal and
enforceable provision as similar in terms to such illegal or
unenforceable provision as may be possible.
6. INCONSISTENCIES. The Loan Documents are intended to be
consistent. However, in the event of any inconsistencies among
any of the Loan Documents, such inconsistency shall not affect
the validity or enforceability of each Loan Document. The
Borrower agrees that in the event of any inconsistency or
ambiguity in any of the Loan Documents, the Loan Documents
shall not be construed against any one party but shall be
interpreted consistent with the Bank's policies and
procedures.
7. HEADINGS. The headings of sections and paragraphs have been
included herein for convenience only and shall not be
considered in interpreting this Note.
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8. SCHEDULES. If a Schedule and/or an Exhibit is attached hereto,
the provisions thereof are incorporated herein.
9. JUDICIAL PROCEEDING; WAIVERS.
a. THE BORROWER AGREES THAT ANY SUIT, ACTION OR
PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR
INSTITUTED BY THE BANK OR THE BORROWER OR ANY
SUCCESSOR OR ASSIGN OF THE BANK OR THE BORROWER, ON
OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN
DOCUMENT OR THE DEALINGS OF THE PARTIES WITH RESPECT
HERETO, OR THERETO, SHALL BE TRIED ONLY BY A COURT
AND NOT BY A JURY.
b. THE BANK AND THE BORROWER EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING.
FURTHER, THE BORROWER WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR
IN ADDITION TO, ACTUAL DAMAGES.
c. THE BORROWER ACKNOWLEDGES AND AGREES THAT THIS
SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS
NOTE AND THAT THE BANK WOULD NOT EXTEND CREDIT TO THE
BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION
WERE NOT A PART OF THIS NOTE.
IN WITNESS WHEREOF, the Borrower has duly executed and delivered to the Bank
this Note as of the date first above written.
ATTEST: ECC SIMULATION LIMITED
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------ ------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary Title: President
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
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EXHIBIT A
NOTICE OF BORROWING UNDER
REVOLVING CREDIT
DATE OF BORROWING:_______________________________
DATE OF NOTE:____________________________________
AMOUNT REQUESTED: $______________________________
INTEREST RATE BASIS:_____________________________
INTEREST PERIOD (IF APPLICABLE):_________________
The Borrower hereby notifies the Bank that it requires a borrowing ("Borrowing")
under the Revolving Credit Agreement dated September 20, 1994 (together with any
amendments or modifications thereto in effect from time to time, the "Loan
Agreement") established for the Borrower in the amount set forth above. The
Borrowing will be deposited in the Borrower's Account No. _____________________.
In order to induce the Bank to fund such Borrowing, the Borrower hereby affirms
the following:
1. The representations and warranties of the Borrower contained
in the Loan Agreement are correct on and as of the date of
this Notice of Borrowing Under Revolving Credit.
2. No Event of Default (as defined in the Loan Agreement) has
occurred and is continuing.
3. There has been no change in the Borrower's or any Obligor's
condition, financial or otherwise, since the date of the Loan
Agreement, which would have a Material Adverse Effect (as
defined in the Loan Agreement).
4. All of the Loan Documents (as defined in the Loan Agreement)
remain in full force and effect, without modification.
5. Use of Borrowing will be: ____________________________________
_____________________________________________________________.
Date: ______________, 19__
ECC SIMULATION LIMITED
By:____________________________
Name:
Title:
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