1
EXHIBIT 10.16
Execution Copy
SEPTEMBER 1996 NOTE
U.S. $20,000,000.00 September 19, 1996
FOR VALUE RECEIVED, AmeriQuest Technologies Inc., a corporation
organized under the laws of the State of Delaware (the "Borrower"), hereby
promises to pay to the order of COMMERZBANK AKTIENGESELLSCHAFT (the "Bank"), at
the Bank's office at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, New York 10281-1050,
for the account of the respective Lending Office (as defined in the Letter
Agreement referred to below) the principal sum of U.S. $20,000,000.00 (Twenty
Million United States Dollars) or, if less, the aggregate unpaid principal
amount of all loans to the Borrower outstanding under the Letter Agreement,
dated as of January 9, 1996, as amended, between the Borrower and the Bank (as
such may be amended from time to time, the "Letter Agreement").
The Borrower shall pay the principal amount of each loan at the times
specified in the Letter Agreement (which Letter Agreement includes provisions
for repayment ON DEMAND), as amended, and shall pay interest on the unpaid
principal amount of each loan from the date of such loan until such principal
amount is paid in full, at such interest rates, and at such times, as are
specified in the Letter Agreement, as amended.
Both principal and interest are payable in lawful money of the United
States of America in immediately available funds. Prior to any transfer
hereof, all loans made by the Bank to the Borrower under the Letter Agreement,
as amended, and all payments made on account of principal hereof, shall be
recorded on the grid attached hereto which is a part of this September 1996
Note.
This September 1996 Note is the Note referred to in, and is entitled
to the benefits of, the Letter Agreement, as amended, which among other things,
provides for discretionary extensions of credit by the Bank to the Borrower
from time to time in an aggregate amount not to exceed the United States Dollar
amount first above mentioned, the indebtedness of the Borrower resulting from
such extensions of credit being evidenced by this September 1996 Note.
AMERIQUEST TECHNOLOGIES INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. Finance
By: /s/ Xxxxxx Xxxxx
---------------------------
Name: Xxxxxx Xxxxx
Title: Corporate Secretary
2
[COMMERZBANK LETTERHEAD]
2 World Financial Center
NEW YORK, NY 10281-1050
Telephone (000) 000-0000
AMERIQUEST TECHNOLOGIES INC.
0 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxx
President & COO
September 19, 1996
SECOND AMENDMENT TO LETTER AGREEMENT, DATED AS OF JANUARY 9, 1996
Ladies and Gentlemen:
Reference is made to the Letter Agreement dated as of January 9, 1996 between
AmeriQuest Technologies Inc. (the "Borrower") and Commerzbank
Aktiengesellschaft, New York Branch and/or Grand Cayman Branch (as heretofore
amended, the "Letter Agreement"; unless otherwise indicated herein, capitalized
terms herein have the meanings assigned thereto in the Letter Agreement).
In accordance with our recent conversations, and in consideration of the mutual
promises contained herein and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged by the parties hereto, upon
your acceptance hereof the parties hereto hereby make the following amendments
to the Letter Agreement:
1. The term "Termination Date" on page one of the Letter Agreement is hereby
amended in its entirety to read as follows:
"March 31, 1997".
2. Your indebtedness under the Letter Agreement as amended hereby shall be
evidenced by a new grid promissory note substantially in the form of the
Attachment 1 hereto (the "September 1996 Note").
3. It is a condition precedent to the availability of any credit hereunder
that your obligations under the Letter Agreement, as amended, and the September
1996 Note will be supported at all times hereunder by the Selbstschuldnerische
Hoechstbetrags-Buergschaft, dated December 21, 1995 (as amended on August 26,
1996, the "Guaranty") of Computer 2000 Aktiengesellschaft, Munich, Germany,
direct owner of 51% of your outstanding capital stock the ("Guarantor").
3
[COMMERZBANK LETTERHEAD]
page 2 of letter dd. September 19, 1996 to AmeriQuest Technologies Inc.
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4. From the date hereof, all references in the Letter Agreement and each of
the other credit documents to the Letter Agreement shall be deemed to be
references to the Letter Agreement, as amended hereby.
Except as expressly modified herein, the Letter Agreement shall remain in full
force and effect and is hereby confirmed and ratified in all respects.
This Second Amendment shall be governed by and construed in accordance with the
law of the State of New York.
We kindly ask you to express your acceptance of the above terms by executing
and returning to us the attached copy of this Second Amendment to Letter
Agreement, together with the attached execution copy of the September 1996
Note.
Very truly yours,
COMMERZBANK
Aktiengesellschaft
New York Branch
Grand Cayman Branch
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxx
----------------------- ------------------
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx
Senior Vice President Vice President
Agreed and Accepted:
AMERIQUEST TECHNOLOGIES INC.
By: /s/ Xxxxxx X. Xxxxxxxxx By:
--------------------------- --------------------------
Name: Xxxxxx X. Xxxxxxxxx Name:
Title: V.P. Finance Title:
Date: October 1, 1996
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Attachment 1
SEPTEMBER 1996 NOTE
U.S. $20,000,000.00 September 19, 1996
FOR VALUE RECEIVED, AmeriQuest Technologies Inc., a corporation
organized under the laws of the State of Delaware (the "Borrower"), hereby
promises to pay to the order of COMMERZBANK AKTIENGESELLSCHAFT (the "Bank"), at
the Bank's office at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, New York 10281-1050,
for the account of the respective Lending Office (as defined in the Letter
Agreement referred to below) the principal sum of U.S. $20,000,000.00 (Twenty
Million United States Dollars) or, if less, the aggregate unpaid principal
amount of all loans to the Borrower outstanding under the Letter Agreement,
dated as of January 9, 1996, as amended, between the Borrower and the Bank (as
such may be amended from time to time, the "Letter Agreement").
The Borrower shall pay the principal amount of each loan at the times
specified in the Letter Agreement (which Letter Agreement includes provisions
for repayment ON DEMAND), as amended, and shall pay interest on the unpaid
principal amount of each loan from the date of such loan until such principal
amount is paid in full, at such interest rates, and at such times, as are
specified in the Letter Agreement, as amended.
Both principal and interest are payable in lawful money of the United
States of America in immediately available funds. Prior to any transfer
hereof, all loans made by the Bank to the Borrower under the Letter Agreement,
as amended, and all payments made on account of principal hereof, shall be
recorded on the grid attached hereto which is a part of this September 1996
Note.
This September 1996 Note is the Note referred to in, and is entitled
to the benefits of, the Letter Agreement, as amended, which among other things,
provides for discretionary extensions of credit by the Bank to the Borrower
from time to time in an aggregate amount not to exceed the United States Dollar
amount first above mentioned, the indebtedness of the Borrower resulting from
such extensions of credit being evidenced by this September 1996 Note.
AMERIQUEST TECHNOLOGIES INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. Finance
By: /s/ Xxxxxx Xxxxx
---------------------------
Name: Xxxxxx Xxxxx
Title: Corporate Secretary
5
[DEUTSCHE BANK LETTERHEAD]
AmeriQuest Technologies dated as of November 4, 1996
0000 Xxxxxxxxx Xxxx Xxxx: LEX/dmq
Hollywood, FL 33024 Ref: CFI-3/21848
Tel: (000) 000-0000
Re: Second Addendum to the Advising Letter dated as of March 29, 1996 (the
"Advising Letter")
-------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Advising Letter. Unless otherwise
defined herein, terms defined therein are used with the same meaning herein.
The Advising Letter is hereby amended by increasing the aggregate principal
amount of the uncommitted line from US$14,000,000 to US$19,000,000. Prior to
our considering any drawdown request under the increased portion of the
uncommitted line, we need to receive a duly executed note in the form attached
hereto as Exhibit A and our standard account documentation.
Except as modified hereby, all the terms and provisions of the Advising Letter
shall continue in full force and effect.
Very truly yours,
Deutsche Bank AG
New York Branch/
Cayman Islands Branch
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxx Xxxxx
------------------------ -----------------------
Xxxxxxx X. Xxxxxxxx Xxxx Xxxxx
Vice President Vice President
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EXHIBIT A
NOTE
U.S.$19,000,000 DATED AS OF NOVEMBER 4, 1996
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
Deutsche Bank AG (the "Bank") New York and/or Cayman Islands Branches in lawful
money of the United States of America and in immediately available funds the
principal amount of Nineteen Million United States Dollars (U.S.$19,000,000)
or, if less, the unpaid principal amount of all loans made by the Bank's New
York Branch or Cayman Islands Branch to the undersigned from time to time, at
the principal office of Deutsche Bank AG New York Branch, New York, New York,
on the dates endorsed on the schedule (the "Grid") attached hereto.
The undersigned also promises to pay interest on the unpaid principal
amounts made available by the Bank hereunder prior to maturity at the rates per
annum set forth on the Grid. The undersigned hereby promises to pay the Bank
interest, payable upon demand, on any amount of principal and, to the extent
permitted by law, interest, remaining unpaid hereunder after maturity (whether
by acceleration or otherwise) until paid in full at a rate equal to 2% plus the
Bank's Base Rate. "Base Rate" shall mean a fluctuating interest rate per
annum equal to the higher of the Bank's Prime Lending Rate or 0.50% above the
Bank's Overnight Federal Funds Rate. "Prime Lending Rate" shall mean the rate
announced by the Bank from time to time as its prime lending rate for unsecured
commercial loans within the United States (but is not intended to be the lowest
rate of interest charged by the Bank in connection with extensions of credit to
debtors). "Overnight Federal Funds Rate" shall mean the rate per annum at
which the New York Branch of the Bank, as a branch of a foreign bank, in its
sole discretion, can acquire federal funds in the interbank overnight federal
funds market including through brokers of recognized standing. Any change in
the interest rate resulting from a change in the Base Rate shall take effect at
the time of such change in the Base Rate. Interest shall be based on the bank
basis of a year of 360 days and the exact number of days elapsed. Interest
shall commence to accrue on the date of each loan and be payable in lawful
money of the United States of America at the office of the Bank listed above on
each such loan's maturity date stated on the Grid (unless such loan has a
maturity greater than three months in which event interest shall also be
payable quarterly in arrears). The undersigned authorizes the Bank to debit
its account with the Bank's New York Branch with respect to all payments
hereon.
At the time of the making of any loan hereunder and upon each
repayment of principal the Bank shall, and is hereby authorized to, make a
notation on the Grid of the date and the amount and maturity of each such loan,
the interest rate applicable thereto, and each principal repayment. However,
the failure to make any such notation shall not limit or otherwise affect the
undersigned's obligations hereunder with respect to any such loan or repayment
of principal. Although this Note is dated the date of issue, interest in
respect hereof shall be payable only for the period during which the loans
evidenced hereby are outstanding and, although the stated amount hereof may be
higher, this Note shall be enforceable, with respect to the undersigned's
obligation to pay the principal amount hereof, and interest hereon, only to the
extent of the unpaid principal amount of loans and accrued and unpaid interest
evidenced hereby.
The term "Liabilities" shall include the liability evidenced by this
Note and all other liabilities, direct or contingent, joint, several or
independent, of the undersigned now or hereafter existing, due or to become due
to, or held or to be held by, the Bank, whether created directly or acquired by
assignment or otherwise.
7
Upon the occurrence of any of the following events (each an "Event of
Default"): (i) nonpayment when due of any of the Liabilities; (ii) any
representation in any financial or other statement of the undersigned delivered
to the Bank by or on behalf of the undersigned being untrue or omitting any
material fact; (iii) the failure of the undersigned or any of its subsidiaries
to generally pay its debts as they come due or the admission in writing by the
undersigned or any of its subsidiaries of its inability to pay its debts
generally, or the making by the undersigned or any of its subsidiaries of an
assignment for the benefit of creditors, or the institution of any proceeding
by or against the undersigned or any of its subsidiaries seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or the appointment of a receiver, trustee, custodian or other similar
official for the undersigned or any of its subsidiaries or for any substantial
part of the property of the undersigned or any of its subsidiaries and, in the
case of institution of any such proceeding against the undersigned or any of
its subsidiaries, either such proceeding remaining undismissed or unstayed for
a period of 30 days or any of the actions sought in the proceeding occurring,
or the undersigned or any of its subsidiaries taking any corporate or other
authorizing action in respect of the foregoing; (iv) failure of the undersigned
or any of its subsidiaries to pay when due any principal, interest, premium, or
other amount owing with respect to any of its indebtedness for borrowed money
(including guarantees thereof) or any other event occurring or condition
existing and continuing after any applicable grace period, the effect of which
is to accelerate or to permit the acceleration of the maturity of such
indebtedness; (v) any judgment or order for the payment of money shall be
rendered against the undersigned or any of its subsidiaries and shall remain
unpaid or unsatisfied for a period of 10 days; (vi) the undersigned becoming a
party to any merger, consolidation, or sale of all or substantially all of its
assets without the prior written consent of the Bank; (vii) failure of the
undersigned or any of its subsidiaries to perform any agreement with the Bank;
(viii) a change in the condition or the affairs of the undersigned or any of
its subsidiaries such that, in the opinion of the Bank, its credit risk is
increased or the Bank deems itself insecure for any other reason; or (ix) there
shall occur any change in the ownership of the undersigned which, in the
opinion of the Bank, is material; THEN AND IN ANY SUCH EVENT, the Bank in its
discretion may, by written notice to the undersigned, declare the principal of
and accrued interest on all Liabilities to be, whereupon the same shall become,
forthwith due and payable, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the undersigned,
provided, that upon the occurrence of any event specified in clause (iii) with
respect to the undersigned such amounts shall automatically become and be due
and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the undersigned.
In the case of any non-payment when due of any Liabilities, the
undersigned shall pay all costs and expenses of every kind for collection,
including all attorneys' fees.
In the event that a determination is made by the Bank in its sole
discretion that reserves must be maintained with any Federal Reserve Bank of
the United States, with any other governmental authority whatsoever or
otherwise pursuant to any Regulation of the Board of Governors of the Federal
Reserve System or otherwise, in connection with the loans evidenced hereby or
the funding thereof the undersigned agrees to pay and hold the Bank harmless
from and against the cost of acquiring and/or maintaining any such reserves.
If any principal payment hereunder is made for any reason whatsoever on a date
other than the maturity date, the undersigned (i) shall pay interest accrued
thereon and (ii) shall on demand indemnify the Bank against all losses,
including loss of profit and expenses, suffered by it in liquidating or
otherwise employing deposits acquired to fund such loans until the stated
maturity. A certificate of the Bank as to the amount required to be paid by the
undersigned under this paragraph shall accompany such demand and shall be,
except in the case of manifest error or in the absence of good faith, final and
conclusive.
2
8
In the event that a determination is made by the Bank in its sole
discretion that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on the Bank's capital as a consequence of its
obligations to the undersigned or of the loans to the undersigned evidenced
hereby to a level below that which the Bank could have achieved but for such
adoption, change, or compliance, the undersigned promises to pay on demand to
the Bank such additional amount or amounts as will compensate the Bank for such
reduction. A certificate of the Bank as to the amount required to be paid by
the undersigned under this paragraph shall accompany such demand and shall be,
except in the case of manifest error or in the absence of good faith, final and
conclusive.
All payments to be made hereunder by the undersigned shall be made
without set-off or counterclaim and in such amounts as may be necessary in
order that every such payment (after deduction or withholding for or on account
of any present or future taxes, levies, imposts, duties or other charges of
whatever nature imposed by the country of the undersigned or any political
subdivision or taxing authority therein or thereof) shall not be less than the
amounts otherwise specified to be paid hereunder.
No delay on the part of the Bank in exercising any of its options,
powers or rights, or partial or single exercise thereof, shall constitute a
waiver thereof. The options, powers and rights of the Bank specified herein
are in addition to those otherwise created.
This Note shall supersede and replace the Note dated as of March 29,
1996 the ("Old Note") and all amounts outstanding under the Old Note shall be
deemed to be outstanding under this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE UNDERSIGNED AND THE BANK HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS NOTE OR ANY MATTER
ARISING HEREUNDER.
Name: AmeriQuest Technologies, Inc.
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Address: 0000 Xxxxxxxxx Xxxx.
----------------------------------
Hollywood, FL 33024
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Signature(s): /s/ Xxxxxx X. Xxxxxxxxx
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Signature(s): /s/ Xxxxxx Xxxxx
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Respective Title(s), if any: CFO
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9
SEVENTH AMENDED & RESTATED CORPORATE TERM
PROMISSORY NOTE (LIBOR) (THE "NOTE")
Dated as of September 25, 1996
For value received, AMERIQUEST TECHNOLOGIES, INC., a corporation organized
under the laws of the State of Delaware, with its principal place of business
located at 0 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxx, XX 00000 ("Borrower"), hereby
unconditionally promises to pay to the order of BAYERISCHE HYPOTHEKENUND
WECHSEL - BANK AKTIENGESELLSCHAFT, acting through its New York Branch
("Lender"), at its office at 00 Xxx Xxxx, Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or any other branch or office of Leader which it shall
designate) the principal sum of Fourteen Million United States Dollars (U.S.
$14,000,000.00) ("Principal") on March 25, 1997, ("Maturity Date") and to pay
interest thereon, to the extent permitted by applicable law, at per annum rates
equal to sixty five hundredths of a percent (0.65%) above LIBOR (as defined
below) for interest periods of 1, 2, 3 or 6 months (each a "LIBOR Interest
Period"), in accordance with the following.
1. INTEREST.
(a) "LIBOR" shall mean that rate of interest, as determined by Lender in its
sole judgment, at which, for a LIBOR Interest Period commencing on the date of
each loan ("Borrowing") and, if applicable, each successive LIBOR Interest
Period, U.S. dollar deposits in an amount equal to the outstanding Principal
shall be offered to Lender in the London Interbank market at approximately 11
a.m. London time two Business Days (as defined below) prior to the first day of
such LIBOR Interest Period, whether or not Borrower shall have notice thereof;
provided that LIBOR is available, and provided further, that each such period
shall commence on the day on which the immediately preceding period expires.
If LIBOR shall be deemed unavailable, interest shall accrue at a per annum rate
to be mutually agreed to by Xxxxxx and Borrower. LIBOR shall be deemed
unavailable if no deposit in the amount of the outstanding Principal hereunder
based on the LIBOR Interest Period selected is readily obtainable by Xxxxxx in
the London Interbank market, as determined by Lender in its sole judgment.
(b) As used herein, "Business Day" shall mean any day on which commercial
banks in London and New York City are open for general business.
(c) Except as otherwise provided herein, interest shall accrue on the
outstanding Principal from the date hereof until its payment to Lender in full,
computed on the basis of a 360-day year and the actual number of days elapsed.
Accrued interest shall be paid to Lender, (i) on the Maturity Date, (ii) on the
last day of each LIBOR Interest Period, (iii) when LIBOR is longer than three
months, every three months after the Initial Day (as defined below); and (iv)
whenever else a payment of Principal shall be made or shall become payable.
(d) Notwithstanding any provision to the contrary contained herein, (i) if the
last day of a LIBOR Interest Period falls on a day other than a Business Day,
then the last day of the LIBOR Interest Period shall be extended to fall on the
next succeeding Business Day, unless such extension would cause the last day of
the LIBOR Interest Period to occur in the next following calendar month, in
which case, the LIBOR Interest Period shall end on the immediately preceding
Business Day; (ii) if any LIBOR Interest Period begins on the last Business Day
of a calendar month (or a day for which there is no numerically corresponding
day in the calendar month at the end of such LIBOR Interest Period), then it
shall end on a day which is the last Business Day of the applicable calendar
mouth; and (iii) no LIBOR Interest Period may be selected that would end later
than the Maturity Date.
2. PREPAYMENTS.
The Principal may be paid before the end of a LIBOR Interest Period, only if
Lender shall have given its prior written consent. With such a prepayment,
Borrower shall also pay accrued interest and any other amounts owed to Lender
in respect of the Borrowing and shall reimburse Lender for any fee, cost,
expense or loss which Lender shall incur or suffer, in an amount to be
determined by Lender in its sole discretion, because of early payment of
Principal including, but not limited to, any fee, cost, expense or loss which
Lender shall incur in the redeployment of its funds.
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3. PAYMENTS.
(a) Each payment due under this Note shall be made in immediately available
funds at the Office of Lender or to such account as Lender may designate to
Borrower without any setoff, withholding or deduction of any kind. Whenever
any payment to be made hereunder would without this provision be due and
payable on a day which is not a Business Day, it shall be due on the next
succeeding Business Day, except as otherwise expressly provided herein.
(b) Lender shall apply payments received from or for the account of Xxxxxxxx
first to accrued, unpaid interest due Lender and next to sums due Lender other
than Principal, notwithstanding any direction by Borrower to the contrary.
(c) All payments of Principal, interest and any other sums due hereunder shall
be made in the amounts required hereby without any reduction or setoff (unless
based on a final judgment on which execution may be had), notwithstanding the
assertion of any right of recoupment or setoff or any counterclaim, and without
any withholding on account of taxes, levies or duties or any other deduction
whatsoever. In the event that Borrower is required by law to withhold or to
deduct any sum from payment required hereby, Borrower shall, to the extent
permitted by applicable law, increase the amount paid by it to Lender by such
withholding or deductions as may be necessary so that Lender shall receive an
amount which after payment of any sum withheld or deducted shall be equal to
the amount that Lender would have received had such sum not been withheld or
deducted.
(d) In the event that Borrower does not cause a payment to be made when and as
due to Lender, Lender may charge the amount due to any account of Borrower with
Lender or any other branch or any subsidiary of Lender and apply funds from
such account to the payment due, unless Lender shall have agreed expressly with
Borrower not to do so.
4. NOTICE SELECTING LIBOR INTEREST PERIOD.
(a) To request a LIBOR Interest Period, Borrower shall in communication to
Lender ("Interest Notice") refer to this Note and specify the duration of such
LIBOR Interest Period and the Business Day on which such LIBOR Interest Period
is to commence ("Initial Day"). To be effective, an Interest Notice must be
received by Lender at least two full business days prior to the Initial Day.
An Interest Notice not in writing shall be deemed to have been complete and in
accordance with the record Lender makes of such LIBOR Interest Period.
(b) By requesting a LIBOR Interest Period, Borrower shall be deemed to
represent that, as of the Initial Day, the Representations and Warranties of
Section 6 hereof remain accurate and that no Event of Default (as defined
below) or an event which, with the giving of notice or the passage of time, or
both, would become an Event of Default, will result or have resulted. No LIBOR
Interest Period shall commence unless all such Representations and Warranties
shall then be true and correct.
5. CONDITIONS PRECEDENT.
The Principal shall not be available unless (i) all Representations and
Warranties of Borrower made in connection with this Note are true and correct,
as of the Effective Date, and (ii) Lender shall have received each of the
following in form and substance satisfactory to Lender and its counsel:
(a) A certified copy of corporate resolutions of each of Borrower and any
Guarantor authorizing it to execute and deliver, and perform its obligations
under, this Note, and any writing ("Loan Document") which it is contemplated
Borrower or such Guarantor will give or has given Lender as a condition or
requirement for borrowing under the Note;
(b) A certificate or certificates of each of Xxxxxxxx's and any Guarantor's
corporate secretary or assistant secretary as to the incumbency and signatures
of the officers of Borrower or such Guarantor who shall have executed this Note
or any Loan Document and who shall be authorized to act on behalf of Borrower
with respect to this Note; and
(c) The unconditional guarantee of COMPUTER 2000 AG, Xxxxxxxxxxxxxx
Xxxxxxx 00, 00000 Xxxxxx, Xxxxxxx, in form and substance acceptable to
Lender.
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6. REPRESENTATIONS AND WARRANTIES.
By executing and delivering this Note, Borrower represents and warrants that:
(a) Borrower is a corporation duly organized, validly existing, and in good
standing and qualified to do business in the jurisdiction of its incorporation
and states in which it is operating;
(b) Borrower has full power and authority, not restricted by any law or
governmental regulation, to execute and deliver this Note and to perform its
obligations as contemplated hereby;
(c) execution and delivery of this Note has been duly authorized and it is
being duly executed and delivered to Lender; upon delivery it will evidence a
valid and legally binding obligation of Borrower, enforceable in accordance
with its terms;
(d) Borrower is not in default in the performance, observance or fulfillment
of any obligation, covenant or condition contained in any agreement or
instrument to which Borrower is a party;
(e) execution and delivery of this Note is not in violation of, nor is it an
event of default, or an event which with the passage of time or service of
notice may become an event of default, under any agreement or instrument to
which Borrower is a party;
(f) execution and delivery of, and performance under, this Note will not
result in the creation or imposition of any security interest in, or lien or
encumbrance upon, any asset of Borrower except in favor of Xxxxxx;
(g) Xxxxxxxx has filed all tax returns and any other reports to government
agencies which it is required by law to file; and
(h) Borrower's financial statements, including any schedules and notes
pertaining thereto, are, and have been, prepared in accordance with generally
accepted accounting principles consistently applied except as noted in them,
and fully and fairly present, at the dates thereof, the financial condition of
Borrower and, if prepared on a consolidated basis, subsidiaries of Borrower
(such subsidiaries hereinafter "Consolidated Subsidiaries"), and the results of
operations for the period covered thereby; there has been no material, adverse
change in the financial condition or business of Borrower or any Consolidated
Subsidiary since the date as of which the statements last received by Xxxxxx
were prepared (which, as of the date hereof, is September 30, 1995).
7. EVENTS OF DEFAULT.
Any person, corporation or other entity that (i) directly or indirectly through
one or more intermediaries is controlled by Borrower or (ii) has given, or is
to give, a guaranty, pledge, security agreement, mortgage, conditional
assignment, comfort letter or other commitment to secure or support Borrower's
obligations to Lender shall hereafter be referred to as an "Affiliate". If any
of the following events ("Events of Default") shall occur, namely
(a) any representation or warranty set forth in this Note, in any document
given in connection with it or otherwise made in connection with any extension
of credit by Lender to Borrower shall prove to have been false or misleading in
any material respect when made or deemed to have been made; or
(b) Borrower shall fail to pay to Lender any principal when and as due
hereunder; or for five days Borrower shall fail either to pay to Lender any
other sum when and as due hereunder or to comply with any other obligation of
Borrower under this Note, or any document given in connection with it or to
fulfill any condition to the Borrowing which shall not have been expressly
waived in a writing signed by two officers of Lender; or Borrower or any
Affiliate shall fail to pay when and as due and payable or within any
applicable grace period any indebtedness of an amount material in respect of
his or its financial condition or business, or shall default with respect to
any evidence of indebtedness or any obligation for borrowed money in such an
amount, or with respect to the performance of any other obligation incurred in
connection with any such indebtedness or obligation; or
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-4-
(c) Borrower shall not, within ten days after Xxxxxx's request and Xxxxxx's
agreement to any reasonable requirement for confidential treatment of
information received, provide to Lender information Borrower has pertaining to
its business or finances, or to the business or finances of an Affiliate or
allow the inspection during business hours of his or its books and records; or
(d) a final judgment shall be entered against Borrower or an Affiliate for the
payment of money in an amount material in respect of his or its financial
condition or business, or it shall have, or may reasonably be expected to have,
a material, adverse effect on his or its financial condition or business, and
the same shall remain unsatisfied for a 30-day period during which it might be
executed upon; or any writ or warrant of attachment or execution or similar
process shall be issued or levied against Xxxxxxxx's or Affiliate's property
having a book value in an amount material in respect of his or its financial
condition or business, and the same shall not be discharged, released, vacated
or bonded within 30 days after its issue or levy; or a judgment creditor shall
by any means, including levy, distraint, replevin or self-help, obtain actual
or constructive, possession of Borrower's or an Affiliate's property having a
book value in an amount material in respect of his or its financial condition
or business, or such possession shall have a material adverse effect on his or
its financial condition or business; or
(e) (i) Borrower generally shall not pay its debts as they become due, or as
it becomes insolvent or suspends its usual business; (ii) Borrower shall enter
into an agreement with its creditors to reduce its obligations to them or to
defer their fulfillment, make a general assignment, for the benefit of its
creditors, commence any proceeding relating to it under any Chapter of Title 11
of the United States Code or seek any other form of relief from its creditors
or from a court or governmental agency pursuant to any law, Statute or
procedure of any jurisdiction (federal, state or foreign) for the relief of
financially distressed debtors (each of the foregoing a "Debtor Relief
Procedure"); (iii) a Debtor Relief Procedure shall be commenced against
Borrower and shall not be dismissed or otherwise terminated within 30 days; or
(iv) Borrower shall take any action to effect any event described in clauses
(i), (ii) or (iii) of this subsection; the term "Borrower" used in this
subsection shall also include any Affiliate; or
(f) there shall have been any other material, adverse change in the financial
condition, business or operations of Borrower or any Affiliate or the condition
or affairs of Borrower or any Affiliate shall change in such a manner that, in
the opinion of Lender, its credit risk is increased or Lender shall deem itself
insecure, and Lender shall have given Borrower notice of such change or
insecurity and Borrower shall not have eliminated such risk within 30 days of
such notice; or
(g) this Note, or any guaranty of Xxxxxxxx's or an Affiliate's obligations to
Lender or any agreement or commitment securing or supporting any such
obligation shall be declared by a court of competent jurisdiction to be not in
full force and effect or shall for any other reason cease to be fully
enforceable in courts within the United States having jurisdiction over
Borrower; or the validity or enforceability of any of the foregoing shall be
challenged, denied or contested by Xxxxxxxx, any Affiliate, or person acting by
or through either Borrower or any Affiliate, or any person having possession,
custody or any control over any property of Borrower or any Affiliate, or any
governmental office or agency; or
(h) Borrower shall, without Xxxxxx's written consent signed by two of its
officers, transfer, or grant or allow to attach a security interest in,
Xxxxxxxx's interest in (i) any asset without receiving fair consideration for
it or (ii) except in the ordinary course of its business, any asset having a
value material to Borrower's financial condition or that is material to the
successful operation of Borrower's business; or
(i) there shall occur any seizure, vesting or intervention by or under
authority of any government by which the management of Borrower or any
Affiliate shall be displaced, or its authority in the conduct of its business
shall be curtailed or impaired;
thereupon, by Xxxxxx giving notice thereof to Borrower, (i) every liability of
Borrower to Lender of whatever kind, whether absolute or contingent shall
forthwith become payable, both as to Principal and interest; and (ii) interest
shall accrue on the outstanding Principal until the date of its payment in full
at the lesser of (x) the maximum rate allowed by applicable law, or (y) two
percent above LIBOR for the duration of the then current LIBOR Interest Period,
and thereafter, at a rate two percent above the Base Rate in effect from time
to time. "Base Rate" shall mean those rates of interest fixed from time to
time
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-5-
by the management of the Lender as its "Base Rate" for the use of its loan
officers in setting interest rates for borrowing, whether or not Borrower shall
have notice thereof.
8. GOVERNING LAW; RESOLUTION OF DISPUTES.
This Note, any amendment to it or any note given as a replacement or in
substitution for it shall be construed in accordance with and governed by the
laws of the State of New York applicable to agreements made and to be performed
wholly in that State. IN CONNECTION WITH ANY DISPUTE WHICH MAY ARISE UNDER
THIS NOTE OR ANY AMENDMENT OF IT, OR ANY NOTE GIVEN AS A REPLACEMENT OR IN
SUBSTITUTION FOR IT, BORROWER HEREBY IRREVOCABLY SUBMITS TO, CONSENTS TO, AND
WAIVES ANY OBJECTION TO, THE JURISDICTION OF THE COURTS OF THE UNITED STATES
AND OF THE STATE OF NEW YORK LOCATED IN THE COUNTY OF NEW YORK WAIVES ANY
OBJECTION TO THE LAYING OF VENUE IN SUCH A COURT; AND WAIVES ANY RIGHT TO TRIAL
BY JURY.
9. CHANGE OF CIRCUMSTANCES.
(a) If after the date hereof there shall become effective any change in any
law or regulation, or in the application or interpretation thereof by a
governmental authority, or there shall be issued or changed any guideline
(whether or not having the force of law) by an entity charged with
responsibility therefor, including without limitation any issuance or change in
respect of reserve, capital adequacy, asset ratio, tax or similar requirements,
or if any such authority or entity shall request or direct that Lender comply
with any law, regulation or guideline or if the Lender shall commence
compliance with any law, regulation, or guideline, either in effect or expected
to become effective, and if as a result of such change, request, direction or
compliance the cost to the Lender of maintaining, or obtaining funds to
satisfy, its commitment or its other obligations regarding the transaction
represented hereby shall increase, the net income after taxes received or
receivable by the Lender in connection with this transaction shall be reduced
or the return it would receive on its capital or performance of this
transaction shall be diminished, Borrower shall compensate the Lender in the
manner requested by the Lender so that the Lender shall receive the sums or
return on its capital it could not receive because of such change, request,
direction or compliance. The Lender's request for such compensation shall be
accompanied by a certificate setting forth the basis of its entitlement thereto
and shall be conclusive, absent manifest error. The Lender shall not be
entitled to compensation pursuant to this provision because of an increase in
tax rates applicable to its general income.
(b) If there shall be a change in an applicable law or regulation or in the
interpretation thereof, or a material change in the New York and/or London
Interbank Eurodollar market, including any changes set forth in the foregoing
paragraph (a), as may have occurred, so that in Lender's judgment it shall
become unlawful for Lender to continue such Borrowing in accordance with this
Note, or if by doing so Lender, in its sole discretion, determines that it
would be subject to material adverse operational burdens or restrictions, then
Lender shall give notice of such fact to Borrower and outstanding Principal and
accrued interest, and all other sums owed to Lender, shall forthwith become
payable and Borrower shall pay to Lender such sums as would be payable under
this Note if a prepayment were made on the date of such notice in an amount
equal to the outstanding Principal of the Borrowing and reimburse Lender for
any fee, cost, expense or loss Lender shall incur or suffer because of such
change, in an amount to be determined by Lender in its sole discretion.
10. OTHER PROVISIONS.
(a) Borrower waives demand, presentment, protest, notice of dishonor and any
other form of notice, not expressly required of Lender by this Note, that may
be required to hold Borrower liable on this Note.
(b) Any notice or advice given to Borrower at the above address or any other
specified by it in writing shall be presumed received by Borrower immediately
if given by telex or facsimile transmission, within one day if given by
telegram, Express Mail or a recognized courier service, or within three days if
deposited, first class postage prepaid, in an official depository of the United
States Postal Service for mail to be delivered.
(c) Borrower shall reimburse Lender upon request for any out-of-pocket
expenses, including reasonable fees and disbursements of legal counsel,
incurred in connection with the enforcement of this Note or
14
-6-
amendment of it, or any note given as a replacement or in substitution for it,
or maintenance of its rights thereunder. Each sum due to Lender under this
Note, other than Principal and interest, shall bear interest from the date of
demand until the date of payment in full at per annum rates equal to the lesser
of two percent above the Base Rate or the maximum extent allowed by applicable
law.
(d) In the event Lender extends credit to Borrower after the date hereof and
such extension of credit shall not be pursuant to a written agreement signed by
two officers of Lender or evidenced by a note accepted by Xxxxxx, it shall be
governed by and subject to all the provisions of this Note except that the term
and interest rate shall be as otherwise agreed.
(e) Neither Lender nor its directors, officers, attorneys, agents or employees
shall be liable to Borrower or any Affiliate for any loss or damage caused by
any act or omission on the part of any of them unless such loss or damage shall
have been caused by the gross negligence or willful misconduct of such person,
unless such loss or damage shall have been the direct, immediate and necessary
result of such act or omission and unless such result was intended by such
person or such person knew that such loss or damage was the probable result of
his act or omission.
(f) This Note constitutes the entire agreement with respect to the subject
matter hereof; Borrower has not relied upon any representation of Lender in
making the Borrowing or giving this Note. This Note supersedes all prior
agreements, understanding and arrangements, whether oral or written, regarding
the obligations of Borrower which it evidences.
(g) This Note may not be modified or amended except by an instrument or
instruments in writing signed by the person or entity against whom enforcement
of any such modification or amendment is sought, with two officers of Lender
signing if it must sign; the waiver by Lender of any condition of, or any
breach of any term or provision of, this Note shall be limited to such instance
and shall not be construed as a waiver of the conditions generally or of any
subsequent breach.
(h) In the event any one or more of the provisions contained in this Note, any
amendment of it or any note taken as a replacement or in substitution for it,
should be invalid, illegal or unenforceable in any respect, the remaining
provisions shall not for that reason be affected or impaired in any way.
(i) Unless the context otherwise requires, words of any gender shall include
each other gender where appropriate.
(j) This Note shall inure to the benefit of, and shall be binding upon, Xxxxxx
and Borrower, their respective successors and Xxxxxx's assigns.
AMERIQUEST TECHNOLOGIES INC., Borrower
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Title: /s/ V.P. Finance
--------------------------------
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Title: Corp. Secretary
--------------------------------
15
AMENDED AND RESTATED
PROMISSORY NOTE
Dated as of October 25, 1996
For value received AmeriQuest Technologies, Inc., a corporation duly organized
and existing under the laws of the State of Delaware ("Borrower"), with its
principal office at 0000 Xxxxxxxxx Xxxx., Xxxxxxxxx, Xxxxxxx 00000, hereby
unconditionally promises to pay to the order of BAYERISCHE VEREINSBANK AG New
York Branch or such other lending office, branch, agency, affiliate or
subsidiary of BAYERISCHE VEREINSBANK AG, as it may designate ("Lender") in
immediately available funds without any setoff, withholding or deduction, at
its office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or to such account
as Lender may designate, together with interest accrued thereon as provided
below, on or before the Due Date, the principal amount of each Borrowing
("Borrowing") shown on the schedule of Borrowings at the end of this note or on
any continuation of it or on its books and records ("Schedule"). Lender is
hereby authorized to enter on the Schedule the date, amount, interest rate
agreed upon between Borrower and Lender and Due Date of each Borrowing made by
Lender to Borrower, the aggregate outstanding principal amount of which shall
not exceed Twelve Million U.S. Dollars (U.S. $12,000,000.00)
For each Borrowing the "Due Date" shall be the first to occur of the following:
the date shown on the Schedule or March 31, 1997, unless extended in writing by
two authorized officers of Xxxxxx.
As used in this note, (i) "LIBOR" shall mean the per annum rate of interest, as
determined by Lender in its sole judgment, at which U.S. Dollar deposits in an
amount equal to the principal of such Borrowing shall be offered for a period
equal to the Interest Period to prime banks in the London interbank market
approximately at 11 a.m. London time two Business Days prior to the date
requested for a Borrowing or for which LIBOR is to be determined, whether or
not Borrower shall have notice thereof; (ii) with respect to any Borrowing,
"Interest Period" shall mean a period, and each successive period thereafter,
of 1, 3 or 6 months as agreed between Lender and Borrower, commencing on the
date the Borrowing is made or to be made; (iii) "Business Day" shall mean any
day on which commercial banks are not authorized or required to close in New
York City and, with respect to a Borrowing on which interest accrues based on
LIBOR, a day on which dealings in U.S. Dollar deposits are also carried out in
the London interbank market; and (iv) "Base Rate" shall mean those rates of
interest fixed from time to time by the management of Bayerische Vereinsbank
AG, New York Branch as its "Base Rate" for the use of its loan officers in
setting interest rates for borrowings, whether or not Borrower shall have
notice thereof.
Interest shall accrue on the outstanding principal amount of each Borrowing, to
the extent permitted by applicable law, from the date such Borrowing is made
until the date such Borrowing shall become payable, at the fluctuating or fixed
rate per annum specified on the Schedule, and thereafter until payment in full
at the rate per annum three percent above the Base Rate, computed on the basis
of a 360-day year and the actual number of days elapsed. Interest shall be
payable with respect to each Borrowing on its Due Date, on the last Business
Day of every third month of each Interest Period longer than 3 months, on the
16
last day of each Interest Period and whenever else the principal shall become
payable.
The principal of a Borrowing may be paid before it is due only if Lender shall
have given its prior written consent and if Borrower shall also pay accrued
interest and any other amounts owed to Lender in respect of the Borrowing and
shall reimburse Lender for any fee, cost, expense or loss Lender shall incur or
suffer because of such early payment.
Borrower represents that (a) it has full power and authority, not restricted by
any law or governmental regulation, to execute and deliver this note and to
perform hereunder; (b) this note evidences its valid and legally binding
obligation, enforceable in accordance with its terms; and (c) its execution,
delivery and performance of this note do not and will not contravene any
contractual restriction binding on or affecting it.
BORROWER ADMITS THAT LENDER HAS NOT COMMITTED ITSELF TO EXTEND ANY CREDIT TO
BORROWER OR TO DO SO ON ANY SPECIFIC TERMS OR AT ANY PARTICULAR INTEREST RATE,
MARGIN OR BASIS, THAT LENDER SHALL HAVE NO OBLIGATION TO MAKE ANY NEW BORROWING
OR TO RENEW ANY BORROWING HEREUNDER AT ANY TIME, ON ANY SPECIFIC TERMS OR AT ANY
PARTICULAR INTEREST RATE, MARGIN OR BASIS, AND THAT LENDER MAY DECLINE TO MAKE
OR RENEW A REQUESTED BORROWING OR OFFER TO DO SO ON ANY TERMS OR AT ANY
INTEREST RATE, MARGIN OR BASIS WITH OR WITHOUT SUFFICIENT REASON WITHOUT ANY
LIABILITY ARISING THEREFOR. BORROWER WILL NOT BASE ANY BUSINESS DECISION UPON
ANY UNDERSTANDING THAT IS INCONSISTENT WITH THE FOREGOING ADMISSION OR CONTRARY
TO IT.
Borrower agrees that so long as this note remains outstanding Borrower shall
furnish Lender: (i) as soon as possible but in any case within 90 days after
the end of each of its fiscal-years, audited statements of its financial
condition (including at least a balance sheet and statement of income for each
fiscal year; and (ii) promptly after filing thereof, copies of all 10-Qs, 10-Ks
and any other reports that Borrower may file with the Securities and Exchange
Commission.
If any of the following events shall occur, then, upon Xxxxxx's notice, every
obligation of Borrower under this note shall become immediately payable:
(a) any representation made by Borrower to Lender shall have been false or
misleading in any material respect; or
(b) Borrower shall fail to pay to Lender any sum when and as due hereunder or
to comply with any covenant contained herein; or
(c) Borrower shall fail to pay any indebtedness when and as due and payable or
shall default with respect to any evidence of indebtedness or any obligation
for borrowed money or the deferred purchase price of property, or in the
performance of any other obligation incurred in connection with any such
indebtedness, if the effect of such default is to accelerate the maturity of
such evidence of indebtedness or obligation or to require the prepayment
thereof or to permit the holder or obligee thereof (or a trustee on behalf of
such holder or obligee) to cause any such indebtedness to become due prior to
its stated maturity; or
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17
(d) (i) Borrower generally shall not pay its debts as they become due, become
insolvent, suspend its usual business, or cease to exist; (ii) Borrower shall
engage in any procedure intended to provide it with relief from its obligations
to its creditors generally or to a group of them holding more than half
Borrower's outstanding obligations to pay money, including but not limited to
making an assignment, commencing a legal proceeding or entering into an
agreement; (iii) any such procedure shall be commenced against Borrower; or
(iv) Borrower shall take any action to effect any event described in clauses
(i), (ii) or (iii); or
(e) (i) Computer 2000 AG, Germany shall at any time own less than a majority
of the outstanding voting shares of Borrower, either directly or indirectly;
(ii) the Kreditauftrag from Computer 2000 AG in favor of Lender shall cease to
be effective; (iii) an event of default shall occur under any agreement between
Computer 2000 AG and Bayerische Vereinsbank AG; or
(f) there shall have been any other material, adverse change in Borrower's
business or operations, or Borrower's condition or affairs shall change such
that, in Xxxxxx's opinion, its credit risk is materially increased.
This note shall be governed by, and construed under, the laws of the State of
New York applicable to agreements made and performed in that State. In
connection with any dispute which may arise hereunder, Borrower hereby
irrevocably submits to the jurisdiction of any court located in the County of
New York, waives any objection to the laying of venue therein, and waives any
right to trial by jury.
Borrower waives demand, presentment, protest, notice of dishonor and all forms
of notice required to hold Borrower liable on this note. Borrower shall
reimburse Lender upon request for expenses, including reasonable attorney's
fees and disbursements, incurred in connection with the enforcement of, or
maintenance of its rights under, this note. Lender and its agents and
employees shall not be liable to Borrower for any loss or damage caused by any
act or omission by any of them unless caused by their gross negligence or
wilful misconduct. Borrower has not relied upon any oral representation of
Lender in giving this note. Should any provision in this note be
unenforceable, the other provisions shall not thereby be affected.
This note amends and restates in its entirety Xxxxxxxx's promissory note, dated
as of February 20, 1996, as amended (the "Original Note"). Upon execution and
delivery of this note to Lender, the Original Note shall be cancelled and
returned to Borrower and all obligations represented thereby shall continue to
be represented by this note.
AmeriQuest Technologies, Inc., Borrower
By: /s/ Xxxxxx X. Xxxxxxxxx By:
-------------------------------- -------------------------------
CFO
------------------------------------ ----------------------------------
Title Title
3
