AMENDED AND RESTATED REVOLVING NOTE
Exhibit
10.2
AMENDED
AND RESTATED REVOLVING NOTE
$10,000,000.00 June
6, 2005
Walla
Walla,
Washington
FOR
VALUE RECEIVED, the undersigned, KEY TECHNOLOGY, INC., an Oregon corporation
(the “Borrower”),
hereby promises to pay to the order of BANNER BANK, a Washington banking
corporation (the “Lender”)
on the Revolving Maturity Date the unpaid principal balance of all Revolving
Loans made by Lender under this Note, in a maximum amount not to exceed Ten
Million Dollars ($10,000,000), together with interest thereon from the date
hereof until maturity at a per annum rate equal to the Revolving Interest Rate
as defined below (changing as the Revolving Interest Rate changes); provided,
however,
that after the occurrence and during the continuation of an Event of Default,
interest shall accrue at a per annum rate equal to three percent (3%) above
the
Prime Rate (changing as such Prime Rate changes). Notwithstanding anything
herein to the contrary, interest shall not accrue at a rate in excess of the
maximum rate permitted by applicable law.
This
Note amends, restates and continues that certain Revolving Note made by Borrower
in favor of Xxxxxx dated August 9, 2002 in the amount of Ten Million
Dollars ($10,000,000). The indebtedness evidenced by such Revolving Note has
not
been repaid, and nothing herein shall constitute a repayment of such
indebtedness.
Xxxxxxxx
further agrees as follows:
1. All
payments of principal and interest on this Note shall be made by paying the
same
in United States Dollars and in immediately available funds to Lender in
accordance with wire transfer instructions as may be provided to Borrower from
time to time, at its main office, Walla Walla, Washington, not later than 2:00
p.m. (Walla Walla time) on the date on which such payment shall become due.
If
such payment is received after 2:00 p.m., then it will be deemed received on
the
next Business Day.
2. On
each day that the Credit Utilization exceeds the Revolving Commitment Amount,
Borrower shall repay Revolving Loans in such an amount as is necessary to reduce
the Credit Utilization to an amount equal to or less than the Revolving
Commitment Amount.
3. As
used herein “Revolving
Interest Rate”
shall mean for each Revolving Loan (or portion of thereof) (a) the Prime
Rate minus
one and one half percent (1.50%) or (b) the LIBOR Rate plus
one and one tenth percent (1.10%), in each case as designated by Borrower in
an
Interest Rate Notice given with respect to such Revolving Loan (or portion
thereof) or as otherwise determined pursuant to Section 2.4(b)
of the Loan Agreement (as defined below). Accrued but unpaid interest on each
Revolving Loan (or portion thereof) bearing interest at the LIBOR Rate (a
“LIBOR
Rate Loan”)
shall be paid in arrears on the last day of each Interest Period. Accrued but
unpaid interest on each Revolving Loan (or portion thereof) bearing interest
at
the Prime Rate (a “Prime
Rate Loan”)
shall be paid in arrears on the first Business Day of each calendar month,
and
at the Revolving Maturity Date. Accrued interest on each Revolving Loan shall
be
payable on demand after the occurrence of an Event of Default.
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4. This
Note is issued under and is subject to the terms of that certain Xxxxxxx and
Restated Loan Agreement dated as of June 6, 2005, by and between Borrower and
Lender (as amended from time to time, the “Loan
Agreement”).
Capitalized terms not defined herein have the meanings set forth in the Loan
Agreement.
5. It
is expressly provided that if any of the Events of Default described in
Section 7.1(g)
or Section 7.1(h)
of the Loan Agreement shall occur, the entire unpaid balance of the principal
and interest hereunder shall be immediately due and payable in accordance with
the terms of the Loan Agreement. It is also expressly provided that upon the
occurrence of any other Event of Default, the entire remaining unpaid balance
of
the principal and interest may be declared by Xxxxxx to be immediately due
and
payable in accordance with the terms of the Loan Agreement.
6. Borrower
may repay Prime Rate Loans at any time without penalty or premium. Prepayment
of
all or any portion of a LIBOR Rate Loan prior to the end of the Interest Period
then in effect with respect to such LIBOR Rate Loan, whether voluntary,
mandatory or as the result of Xxxxxx’s collection efforts, shall be subject to
the payment fees as described in Section 2.7
of the Loan Agreement.
7. The
unpaid principal balance of the Revolving Loans made hereunder shall be the
total amount advanced hereunder, less
the amount of the principal payments made hereon. This Note is given to avoid
the execution of an individual note for each Revolving Loan made by Xxxxxx
to
Borrower. This Note evidences a revolving credit and up to the Revolving
Commitment Amount and during the Revolving Commitment Period, Borrower may
pay,
prepay and reborrow. Lender is hereby authorized to record the date and amount
of each Revolving Loan it makes hereunder and the date and amount of each
payment of principal and interest thereon on a schedule annexed hereto and
constituting a part of this Note or maintained in connection herewith. Any
such
recordation by Xxxxxx shall constitute prima facie evidence of the accuracy
of
the information so recorded; provided,
however,
that the failure to make any such recordation or any error in any such
recordation shall not affect the obligations of Borrower hereunder.
8. Each
maker, surety, guarantor and endorser of this Note expressly waives all notices,
demands for payment, presentations for payment, notices of intention to
accelerate the maturity, protest and notice of protest.
9. In
the event this Note is placed in the hands of an attorney for collection, or
suit is brought on the same, or the same is collected through bankruptcy or
other judicial proceedings, Xxxxxxxx agrees and promises to pay reasonable
attorneys’ fees and collection costs, including all out-of-pocket expenses and
the allocated costs and disbursements of internal counsel, incurred by
Xxxxxx.
10. This
Note has been executed and delivered in and shall be governed by and construed
in accordance with the laws of the State of Washington, excluding its conflict
of laws rules. Borrower hereby irrevocably submits to the non-exclusive
jurisdiction of any state or federal court sitting in the City of Walla Walla,
Walla Walla County, Washington, in any action or proceeding brought to enforce
or otherwise arising out of or relating to this Note and hereby
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1637125v4 58243-2
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waives
any objection to venue in any such court and any claim that such forum is an
inconvenient forum.
BORROWER: KEY
TECHNOLOGY, INC., an Oregon corporation
By
/s/
XXXXXX X. XXXXXXX
Its
SVP
& CFO
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Schedule
1
to
Key Technology, Inc. Amended and Restated Revolving Note
|
Date
|
Amount
of Loan
|
Prime
Rate
|
Amount
of Principal Paid
|
Unpaid
Principal Balance
|
Notation
By
|
SEA 1637125v4
58243-2
