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SECOND AMENDED AND RESTATED LINE OF CREDIT NOTE Exhibit 10.10
$10,500,000 August 4, 1995
(As amended and restated
as of November _, 1998)
Nashua, New Hampshire
FOR VALUE RECEIVED, the undersigned, STORAGE COMPUTER CORPORATION, a
Delaware corporation, having a principal place of business at 00 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000-1373 (the "Maker"), does hereby
unconditionally promise to pay to the order of STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company, with its principal place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 (the "Bank"), on the
Maturity Date (as defined in the Loan Agreement hereinafter defined), the
principal sum of TEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($10,500,000), or, if
less, the aggregate unpaid principal amount of loans made by the Bank to the
Maker pursuant to that certain Amended and Restated Loan Agreement of even date
herewith between the Bank and the Maker (as the same may be amended, restated or
otherwise modified from time to time, the "Loan Agreement"), together with
interest to the extent permitted by law on any and all principal amounts
remaining unpaid hereunder from the date hereof until payment in full, at the
rate of interest set forth in Section 2.02 of the Loan Agreement. Interest on
the outstanding principal balances shall be calculated on the basis of a three
hundred sixty (360) day year counting the actual number of days elapsed. Each
change in the floating interest rate applicable to this Note shall take effect
simultaneously with the corresponding change in the Prime Rate (as defined in
the Loan Agreement). To the full extent permitted by applicable law, interest
shall continue to accrue on this Note after the filing by or against the Maker
of any petition seeking any relief in bankruptcy or under any act or law
pertaining to insolvency or debtor relief, whether state, federal or foreign.
PRINCIPAL REPAYMENT. The outstanding principal balance of this Note
shall be repaid as set forth in the Loan Agreement. If not sooner paid, this
Note shall be due and payable in full, together with all accrued and unpaid
interest thereon, whether due or overdue, on the Maturity Date.
VOLUNTARY PREPAYMENTS. The Maker may prepay this Note as set forth in
the Loan Agreement.
APPLICATION OF PREPAYMENTS. All prepayments (whether voluntary,
mandatory or permanent) shall, unless otherwise determined by the Bank, be
applied first to overdue interest and fees, second to accrued but unpaid
interest and fees, and finally, to prepayments of the outstanding principal of
this Note.
PAYMENT OF INTEREST. Interest shall be payable as set forth in the Loan
Agreement.
CALCULATION OF Interest. Interest shall be calculated on the basis of a
360-day year, counting the actual number of days elapsed.
PAYMENTS. All principal and interest hereunder shall be payable in
lawful money of the United States of America at the office of the Bank at the
address shown above in immediately available funds, and shall be made as set
forth in Section 2.04 of the Loan Agreement.
LATE PAYMENT FEE. If any payment due hereunder is not paid within five
(5) days after the date such payment is due, then the Maker shall pay to the
Bank, to the extent permitted by law, a fee (the "Late Payment Fee") equal to
two percent (2%) of the amount of the late payment.
DEFAULT RATE OF INTEREST. If an Event of Default shall have occurred
and shall be continuing after the expiration of any applicable cure period,
then, in such event, the interest rate applicable to this Note (the "Default
Rate") shall be four percent (4%) in excess of the highest rate of interest then
applicable to this Note, which Default Rate shall become effective on the date
such Event of Default occurs and shall continue in effect until such Event of
Default is either cured by the Maker, waived by the Bank or in the case of
incurable financial covenant defaults under Article VII hereof, which are not
waived by the Bank, until the Maker shall have returned to being in compliance
therewith.
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WAIVERS. The Maker of this Note for itself and successors and assigns,
hereby expressly waives presentment, demand, protest, notice of protest,
presentment for the purpose of accelerating maturity, diligence in collection,
and all other demands and notices in connection with delivery, acceptance,
performance, default or enforcement of or under this Note, and expressly waives
the benefit of any exemption under the homestead exemption laws, if any, or any
other exemption or insolvency laws, and consents that the Bank may without
notice and without affecting the Maker's obligations under this Note, (i)
release or surrender, exchange or substitute any personal property or other
collateral security now held or which may hereafter be held as security for the
payment of this Note, (ii) release, add or substitute any other person or party
primarily or secondarily liable for the payment of this Note, and (iii) extend
the time for payment (regardless of the length or number thereof) or otherwise
modify the terms of payment of any part or the whole of the debt evidenced
hereby.
BENEFITS OF OTHER AGREEMENTS. This Note is the Second Amended and
Restated Line of Credit Note referred to in and is entitled to the benefits of
the Loan Agreement and is also entitled to the benefits of all other instruments
evidencing and/or securing the indebtedness hereunder. The occurrence or
existence of an "Event of Default" as defined in the Loan Agreement or in any
other instruments securing and/or evidencing this indebtedness shall constitute
a default under this Note and shall entitle the Bank to accelerate the entire
indebtedness hereunder and take such other action as may be provided for in such
agreements.
AMENDMENT AND RESTATEMENT. This Note is issued by the Maker pursuant to
the Loan Agreement in replacement and substitution of the Original Note defined
and described in the Loan Agreement. This Note is neither a satisfaction nor a
novation thereof.
MAXIMUM RATE. All agreements between the Maker and the Bank are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the indebtedness or otherwise, shall the
amount paid or agreed to be paid to the Bank for the use, forbearance or
detention of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. If, for any circumstances whatsoever, fulfillment of any
provision hereof or of the Loan Agreement, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by law, then, IPSO FACTO, the obligation to be fulfilled shall be
reduced to the limit of such validity, and if from any circumstance the Bank
should ever receive as interest an amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the principal balance evidenced hereby and not to the payment of
interest. As used herein, the term "applicable law" shall mean the law in effect
as of the date hereof, provided, however, that in the event there is a change in
the law which results in a higher permissible rate of interest, then this Note
shall be governed by such new law as of its effective date. This provision shall
control every other provision of all agreements among the Maker and the Bank.
GOVERNING LAW. This Note and all transactions hereunder and/or
evidenced herein shall be governed by, construed, and enforced in accordance
with the substantive laws of The Commonwealth of Massachusetts.
ATTORNEYS' FEES, COSTS OF COLLECTION; APPOINTMENT OF RECEIVER. If this
Note shall not be paid when due and shall be placed by the holder hereof in the
hands of any attorney for collection, through legal proceedings or otherwise,
the Maker will pay attorneys' fees to the holder hereof together with reasonable
costs and expenses of collection.
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IN WITNESS WHEREOF, the Maker has caused this Note to be executed as an
instrument under seal by its duly authorized officer all as of the day and year
first above written.
ATTEST: STORAGE COMPUTER CORPORATION
By:
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Chief Executive Officer Xxxxx X. Xxxxxx
Chief Financial Officer
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