THIRD SUBSTITUTE REVOLVING CREDIT NOTE
$12,500,000.00 September 30, 2002
FOR VALUE RECEIVED, the undersigned, BALTEK CORPORATION, a Delaware
corporation and CRUSTACEA CORPORATION, a Delaware corporation (each of Baltek
Corporation and Crustacea Corporation a "Borrower" and collectively the
"Borrowers"), hereby jointly and severally unconditionally promise to pay on or
before December 31, 2003 (the "Maturity Date"), to the order of FLEET NATIONAL
BANK, a national banking association, as successor-by-merger to Summit Bank (the
"Bank"), at the office of the Bank located at 000 Xxxxxxxxxx Xxxx, Xxxx Xxxx,
Xxx Xxxxxx, or at such other location as the Bank shall designate, in lawful
money of the United States of America and in immediately available funds, the
principal amount of (i) $12,500,000.00 or (ii) so much thereof (or any greater
amount, if any) as shall have been advanced (the "Advances") by the Bank to the
Borrower pursuant to that certain Revolving Loan and Security Agreement dated
December 21, 1999, as amended by a First Amendment to Revolving Loan and
Security Agreement dated as of September 30, 2000, a Second Amendment to
Revolving Loan and Security Agreement dated as of December 31, 2000, a Third
Amendment to Revolving Loan and Security Agreement and Modification to Equipment
Line of Credit Note dated as of September 28, 2001, a Fourth Amendment to
Revolving Loan and Security Agreement dated as of July 31, 2002, but effective
as of June 30, 2002, and a Fifth Amendment to Revolving Loan and Security
Agreement and the Other Loan Documents dated September 30, 2002, all by and
among the Borrowers and the Bank, as such Loan and Security Agreement may be
further amended from time to time (collectively, the "Agreement"). Defined terms
used but not expressly defined herein shall have the same meanings when used
herein as set forth in the Agreement.
The Borrowers jointly and severally further agree to pay interest in like
money at such office on the unpaid principal amount hereof from time to time as
hereinafter provided. The unpaid principal amount hereof shall bear interest
commencing with the date hereof at a fluctuating rate per annum equal to the
Base Rate minus three-quarters of one percent (3/4 of 1%). As used herein, the
term "Base Rate" shall mean the rate of interest announced from time to time by
the Bank as its "base rate" or "base lending rate". This rate of interest is
determined from time to time by the Bank as a means of pricing some loans to its
customers and is neither tied to any external rate of interest or index nor does
it necessarily reflect the lowest rate of interest actually charged by the Bank
to any particular class or category of customers of the Bank.
Interest shall be calculated on the basis of a 360-day year for the actual
number of days elapsed and shall be adjusted automatically as of the opening of
business on each day on which any change in the Base Rate is announced by the
Bank at its principal office.
Installments of accrued interest only shall be due and payable hereon
monthly, with the first such installment being due and payable on the
first day of the first month following the date hereof, and the remainder of
such monthly installments of interest being due and payable on the first day of
each and every month thereafter until this Third Substitute Revolving Credit
Note shall have been paid in full.
Notwithstanding anything contained herein to the contrary, the Borrowers
shall have the option, in accordance with Section 2.1 of the Agreement, to
convert all or any part of their "Base Rate Loans" (as such term is defined in
the Agreement) to "LIBOR Based Rate Loans" (as such term is defined in the
Agreement), and upon doing shall, jointly and severally, pay interest on the
unpaid principal amount of this Third Substitute Revolving Credit Note from time
to time outstanding on a monthly basis.
All advances made by the Bank to the Borrowers hereunder may be noted by
the Bank on the Schedule annexed hereto, and the Bank is authorized to make such
notations which shall be prima facie evidence of the principal amount
outstanding hereunder at any time; provided, however, that any failure to make
such a notation (or any error in notation) shall not limit or otherwise affect
the obligation of the Borrowers hereunder which is and shall remain absolute and
unconditional.
In the event that any payment due under this Third Substitute Revolving
Credit Note shall not be received by Bank within ten (10) days of the due date,
the Borrowers shall, to the extent permitted by law, pay Bank a late charge of
five percent (5%) of the overdue payment (but in no event more than $2,500.00)
as compensation to Bank. Any such late charge shall be in addition to all other
rights and remedies to which Bank may be entitled and shall be immediately due
and payable. Borrowers acknowledge that (i) such late charge is a material
inducement to Bank to make the loan, (ii) Bank would not have made the loan in
the absence of the agreement of the Borrowers to pay such late charge, and (iii)
such late charge in not a penalty and represents a reasonable estimate of the
cost to Bank in allocating its resources (both personnel and financial) to the
additional review, monitoring, administration and collection of the loan.
All payments received hereunder may be applied first to the payment of any
expenses or charges payable hereunder and accrued interest, and the balance only
applied to principal.
Subject to the provisions of Section 2.7 of the Agreement, this Third
Substitute Revolving Credit Note may be prepaid, in whole or in party, at one
time or from time to time, without prepayment premium or fee.
This Third Substitute Revolving Credit Note is a replacement of the Second
Substitute Revolving Credit Note dated December 31, 2000, which was a
replacement of the Substitute Revolving Credit Note dated September 30, 2000,
which was a replacement of the Revolving Credit Note dated December 21, 1999
referred to in the Agreement and this Third Substitute Revolving Credit Note is
the "Third Substitute Revolving Credit Note" referred to in the Fifth Amendment
to Revolving Loan and Security Agreement and the Other Loan Documents dated
September 30, 2002, and is secured by the Collateral described in the Agreement
and the Guaranty Agreement.
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The Bank may declare this Third Substitute Revolving Credit Note to be
immediately due and payable if an Event of Default shall have occurred under the
Agreement or any of the other Loan Documents (including any grace periods
provided herein or therein).
To the extent permitted by law, whenever there is any Event of Default
under this Third Substitute Revolving Credit Note, the rate of interest on the
unpaid principal balance shall, at the option of the Bank, be 5% in excess of
the rate of interest provided herein. Borrowers acknowledge that: (i) such
additional rate is a material inducement to Bank to make the loan; (ii) Bank
would not have made the loan in absence of the agreement of the Borrowers to pay
such additional rate; (iii) such additional rate represents compensation for
increased risk to Bank that the loan will not be repaid; and (iv) such rate is
not a penalty and represents a reasonable estimate of (a) the cost to Bank in
allocating its resources (both personnel and financial) to the on-going review,
monitoring, administration and collection of the loan and (b) compensation to
Bank for losses that are difficult to ascertain.
This Third Substitute Revolving Credit Note may not be changed orally, but
only by an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
Should the indebtedness represented by this Third Substitute Revolving
Credit Note or any part hereof be collected at law or in equity, or in
bankruptcy, receivership, or any other court proceeding, or should this Third
Substitute Revolving Credit Note be placed in the hands of attorneys for
collection upon default, the Borrowers agree to pay, in addition to the
principal and interest due and payable hereon, all reasonable costs of
collecting or attempting to collect this Third Substitute Revolving Credit Note,
including reasonable attorneys' fees and expenses and further including, without
limitation, all post judgment collection costs and expenses.
This Third Substitute Revolving Credit Note shall be and remain in full
force and effect and in no way impaired until the actual payment thereof to the
Bank, its successors or assigns.
Anything herein to the contrary notwithstanding, the obligations of the
Borrowers under this Third Substitute Revolving Credit Note shall be subject to
the limitation that payments of interest shall not be required to the extent
that receipt of any such payment by the Bank would be contrary to provisions of
law applicable to the Bank limiting the maximum rate of interest which may be
charged or collected by the Bank.
Each of the Borrowers and all endorsers and guarantors of this Third
Substitute Revolving Credit Note hereby waive presentment, demand of payment,
protest and notice of dishonor of this Third Substitute Revolving Credit Note.
This Third Substitute Revolving Credit Note is binding upon the Borrowers
and their respective successors and assigns and shall inure to the benefit of
the Bank and its successors and assigns.
This Third Substitute Revolving Credit Note and the rights and obligation
of the parties hereto shall be subject to and governed by the laws of the State
of New Jersey.
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IN WITNESS WHEREOF, the undersigned have caused this Third Substitute
Revolving Credit Note to be duly executed by their respective authorized
officers, all on the day and year above written.
ATTEST: BALTEK CORPORATION
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxx
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Xxxxxx X. Xxxx, Secretary Xxxxxxx Xxxx, President
ATTEST: CRUSTACEA CORPORATION
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxx
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Xxxxxx X. Xxxx, Secretary Xxxxxxx Xxxx, President
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SCHEDULE TO THIRD SUBSTITUTE REVOLVING CREDIT NOTE OF
BALTEK CORPORATION AND CRUSTACEA CORPORATION
TO FLEET NATIONAL BANK
Date Amount Amount Unpaid
of Principal Principal Notation
Advance Repaid Balance by
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$ $ $
