PROMISSORY NOTE
EXHIBIT
10.2
$3,000,000
|
Effective
as of December 1 2006
|
Tulsa,
Oklahoma
|
FOR
VALUE
RECEIVED, the undersigned, CHATSWORTH
DATA CORPORATION,
a
California corporation, ("Maker" or “Borrower”), promises to pay to the order of
BANK
OF OKLAHOMA, N.A.
("Lender"), at its offices in Tulsa, Oklahoma, the principal sum of THREE
MILLION AND NO/100 DOLLARS ($3,000,000) or, if less, the aggregate sum of
advances made by Lender to Maker under the Revolving Credit Agreement ("Credit
Agreement") between Maker and Lender dated of even date herewith, payable as
follows:
a.
|
Principal.
Principal shall be payable on November 30,
2007.
|
b.
|
Interest.
Interest shall be payable on the last day of each month, commencing
the
last day of December, 2006, and at maturity. Interest shall accrue
on the
principal balance outstanding hereunder and on any past due interest
hereunder at a rate at all times equal to the Prime Rate plus
the Margin.
|
“Margin”
means:
Tier
|
Funded
Debt to EBITDA
|
Margin
|
||
I
|
<
2.0
|
minus
0.50%
|
||
II
|
>
2.0x but <
3.0x
|
0.00%
|
||
III
|
>3.0x
|
plus
0.50%
|
The
Margin shall be determined in accordance with the foregoing table based on
the
Funded Debt to EBITDA ratio as reflected in the then most recent Financials.
Adjustments, if any, to the Margin shall be effective the first day of the
first
full month ("Effective Date") after Bank has received the applicable Financials.
If the Borrower fails to deliver the Financials to Bank at the time required
pursuant to Section 6.7, then the Margin shall be the highest Margin set forth
in the foregoing table until the Effective Date.
The
term
“Financials” means the annual financial statements and Compliance Certificate
delivered to Lender pursuant to the Credit Agreement.
For
the
quarterly period following the execution date of the Credit Agreement, the
Margin shall be deemed to be plus
0.50%
(Tier III). Thereafter, the Margin shall be determined in accordance with the
foregoing table based on the Funded Debt to EBITDA ratio.
“Prime
Rate” means a rate which is subject to change from time to time based on changes
in an index which is the BOKF National Prime Rate, described as the rate of
interest set by BOK Financial Corporation, in its sole discretion, on a daily
basis as published by BOK Financial Corporation (“BOKF”) from time to time (the
“Index”). The Index is not necessarily the lowest rate charged by Lender on its
loans and is set by Lender in its sole discretion. If the Index becomes
unavailable during the term of this loan, Lender may designate a substitute
index after notifying Borrower. Lender will tell Borrower the current index
rate
upon Xxxxxxxx’s request. The interest rate change will not occur more often than
each day. Borrower understands that Lender may make loans based on other rates
as well. NOTICE: Under no circumstances will the interest rate on this Note
be
more than the maximum rate allowed by applicable law. Whenever increases occur
in the interest rate, Lender, at its option, may do one or more of the
following: (A) increase Borrower’s payments to ensure Borrower’s loan will pay
off by its original final maturity date, (B) increase Borrower’s payments to
cover accruing interest, (C) increase the number of Borrower’s payments, and (D)
continue Borrower’s payments at the same amount and increase Borrower’s final
payment.
1
If
any
payment shall be due on a Saturday or Sunday or upon any other day on which
state or national banks in the State of Oklahoma are closed for business by
virtue of a legal holiday for such banks, such payment shall be due and payable
on the next succeeding banking day and interest shall accrue to such day. All
interest due hereon shall be computed on the actual number of days elapsed
(365
or 366).
Terms
used herein shall have the meaning given in the Credit Agreement, unless
otherwise defined herein.
All
payments under this Note shall be made in legal tender of the United States
of
America or in other immediately available funds at Xxxxxx's office described
above, and no credit shall be given for any payment received by check, draft
or
other instrument or item until such time as the holder hereof shall have
received credit therefor from the holder's collecting agent or, in the event
no
collecting agent is used, from the bank or other financial institution upon
which said check, draft or other instrument or item is drawn.
From
time
to time the maturity date of this Note may be extended or this Note may be
renewed, in whole or in part, or a new note of different form may be substituted
for this Note and/or the rate of interest may be changed, or changes may be
made
in consideration of loan extensions, and the holder, from time to time, may
waive or surrender, either in whole or in part, any rights, guarantees, security
interests or liens given for the benefit of the holder in connection herewith;
but no such occurrences shall in any manner affect, limit, modify or otherwise
impair any rights, guarantees or security of the holder not specifically waived,
released or surrendered in writing, nor shall any maker, guarantor, endorser
or
any person who is or might be liable hereon, either primarily or contingently,
be released from such liability by reason of the occurrence of any such event.
The holder hereof, from time to time, shall have the unlimited right to release
any person who might be liable hereon; and such release shall not affect or
discharge the liability of any other person who is or might be liable hereon.
If
any
payment required by this Note to be made is not made within five (5) days when
due, or if any default occurs under any loan agreement or under the provisions
of any mortgage, security agreement, assignment, pledge or other document or
agreement which provides security for the indebtedness evidenced by this Note,
the holder hereof may, subject to the Notice and Cure (defined in the Credit
Agreement) at its option, without notice or demand, declare this Note in default
and all indebtedness due and owing hereunder immediately due and payable.
Interest from the date of default on such principal balance and on any past
due
interest hereunder shall accrue at the rate of two percent (2%) per annum above
the nondefault interest rate accruing hereunder. The Maker and any endorsers,
guarantors and sureties hereby severally waive protest, presentment, demand,
and
notice of protest and nonpayment in case this Note or any payment due hereunder
is not paid when due; and they agree to any renewal, extension, acceleration,
postponement of the time of payment, substitution, exchange or release of
collateral and to the release of any party or person primarily or contingently
liable without prejudice to the holder and without notice to the Maker or any
endorser, guarantor or surety. Maker and any guarantor, endorser, surety or
any
other person who is or may become liable hereon will, on demand, pay all costs
of collection, including reasonable attorney fees of the holder hereof in
attempting to enforce payment of this Note and reasonable attorney fees for
defending the validity of any document securing this Note as a valid first
and
prior lien.
2
Upon
the
occurrence of any default hereunder, Xxxxxx shall have the right, immediately
and without further action by it, to set off against this Note all money owed
by
Lender in any capacity to the Maker or any guarantor, endorser or other person
who is or might be liable for payment hereof, whether or not due, and also
to
set off against all other liabilities of Maker to Lender all money owed by
Lender in any capacity to Maker; and Lender shall be deemed to have exercised
such right of setoff and to have made a charge against such money immediately
upon the occurrence of such default even though such charge is made or entered
into the books of Xxxxxx subsequently thereto.
The
holder of this Note may collect a late charge not to exceed an amount equal
to
five percent (5%) of the amount of any payment which is not paid within ten
(10)
days from the due date thereof, for the purposes of covering the extra expenses
involved in handling delinquent payments. This late charge provision shall
not
be applicable in the event the holder hereof, at its option, elects to receive
interest at the increased rate as provided hereunder in the event of
default.
This
Note
is given for an actual loan of money for business purposes and not for personal,
agricultural or residential purposes, and is executed and delivered in the
State
of Oklahoma and shall be governed by and construed in accordance with the laws
of the State of Oklahoma.
CHATSWORTH
DATA CORPORATION
|
||
|
|
|
By | /s/ X. Xxxxxxx Xxxxxx, III | |
X.
Xxxxxxx Xxxxxx, III, President
|
3