Exhibit A
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EXHIBIT 10.23
TERM LOAN A PROMISSORY NOTE
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$508,396.69 Phoenix, Arizona
August 12, 1999
FOR VALUE RECEIVED, OMNI PRODUCTS, INC., an Oregon corporation ("Borrower")
promises to pay to the order of FINOVA CAPITAL CORPORATION, a Delaware
corporation ("FINOVA"), at its offices at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, or at such other place or places as FINOVA may
from time to time designate in writing, the principal sum of Five Hundred Eight
Thousand Three Hundred Ninety Six Dollars and Sixty-Nine Cents ($508,396.69) or
such other sum as is outstanding with respect to the Term Loan A (as defined in
the Loan Agreement, as defined below) from time to time outstanding, plus
interest in the manner and upon the terms and conditions set forth below.
This Term Loan A Promissory Note ("Note") is made pursuant to that certain
Loan and Security Agreement dated as of April 26, 1994 between the FINOVA and
Borrower, as amended from time to time, including, without that certain
Amendment No. 11 to Loan and Security Agreement dated August 12, 1999 (as so
amended from to time, the "Loan Agreement"), the provisions of which are
incorporated herein by this reference. Capitalized terms herein, unless
otherwise noted, shall have the meaning set forth in the Loan Agreement.
1.0 Schedule of Payments; Rate and Payment of Interest; Prepayment.
1.1 This Note shall be payable as follows (subject to section 1.2 below):
a. Fifty-Nine (59) successive monthly installments of principal in an
amount equal to $8,473.28 beginning on September 1, 1999, and continuing monthly
on the first day of each month thereafter through and including July 1, 2004;
and
b. A final installment on August 1, 2004 in the amount of the
outstanding and unpaid principal balance of the Term Loan, together with all
accrued and unpaid interest thereon.
Interest on the principal balance of the Term Loan outstanding from
time to time is payable monthly in arrears on the first day of each and every
month until payment in full, and payment of interest shall begin on September 1,
1999.
1.2 Prepayment may be made under this Note in whole but not in part,
subject to the prepayment provisions set forth in the Loan Agreement, provided
that such prepayment is preceded by not less than five (5) business days prior
written notice to FINOVA and accompanied by all accrued by unpaid interest and
the full amount of the fees applicable upon such prepayment as set forth in the
Loan Agreement. Notwithstanding anything herein to the contrary, in the event
the Loan Agreement is terminated by Borrower in an election by Borrower to not
renew or for any other reason, by FINOVA or by any other person at any time,
then the entire unpaid principal balance of this Note, together with all accrued
and unpaid interest hereon and the full amount of any applicable prepayment
amount, shall become immediately due and payable in full on the effective date
of such termination, without presentment, notice or demand of any kind.
1.3 Interest shall be computed on the basis of a 360-day year for the
actual number of days elapsed, and shall be at the rate of two and one-quarter
percentage points (2.25%) above the Prime Rate (as hereinafter defined) per
annum, computed on the basis of a 360-day year; provided, however, upon the
occurrence and during the continuance of an event of default (as hereinafter
defined), interest shall accrue on the outstanding principal balance of this
Note at a default rate (the "Default Rate ) of four and one-quarter percentage
points (4.25%) above the Prime Rate per annum, and shall be payable on demand.
"Prime Rate" means, for any day, the rate of interest per annum (over a year of
360 days) announced by Citibank, N.A. (the "Bank"), from time to time, as its
"base rate" (or any successor thereto) in effect on such day. The Prime Rate is
not necessarily the lowest rate charged by the Bank. As of the date of this
Note, the Prime Rate is Eight percent (8%) per annum. The applicable rate of
interest assessed hereunder will be increased or decreased from time to time
hereafter in an amount equal to any increase or decrease hereafter made by the
Bank in the Prime Rate. A change in the Prime Rate shall be effective on the
first day following such change.
2.0 Events of Defaults, Remedies.
2.1 The occurrence of any one of the following events shall constitute a
default by Borrower under this Note (hereinafter an "Event of Default"): (a) if
Borrower fails to pay to FINOVA an installment of principal or interest
hereunder when due; (b) if Borrower fails to pay any of its Obligations (as
defined in the Loan Agreement) to FINOVA when due and payable or declared due
and payable; (c) if Borrower fails or neglects to perform, keep or observe any
term, provision, covenant, warranty or representation contained in this Note or
the Loan Agreement (other than as referred to in (a) or (b) of this paragraph),
which is required to be performed, kept or observed by Borrower or if a default
occurs under the Loan Agreement, subject to any applicable cure periods as set
forth in the Loan Agreement; or (d) the occurrence of a default or an event of
default under any agreement, instrument or document heretofore, now or at any
time or times hereafter delivered to FINOVA by Borrower or by any guarantor of
part or all of Borrower's Obligations to FINOVA.
2.2 Upon the occurrence of any Event of Default hereunder, in addition to
FINOVA's right to charge interest on the Obligations at the Default Rate: (a) at
the option of FINOVA, the entire unpaid amount of all of the Obligations,
including without limitation any applicable prepayment amount as set forth in
the Loan Agreement, shall become immediately due and payable without demand,
notice or legal process of any kind; (b) FINOVA may, at its option, without
demand, notice or legal process of any kind, exercise any and all rights and
remedies granted to it by the Loan Agreement or by any other agreement now or
hereafter existing between FINOVA and Borrower or between FINOVA and any
guarantor of part or all of Borrower's liabilities to FINOVA; and (c) FINOVA may
at its option exercise from time to time any other rights and remedies available
to it under the Uniform Commercial Code or other law of the State of Arizona.
2.3 The remedies of FINOVA as provided herein and in the Loan Agreement
shall be cumulative and concurrent, and may be pursued singularly, successively,
or together, at the sole discretion of FINOVA. No act of omission or commission
of FINOVA, including specifically any failure to exercise any right, remedy or
recourse, shall be deemed to be a waiver or release of the same, such waiver or
release to be effected only through a written document executed by FINOVA and
then only to the extent specifically recited therein. A waiver or release with
reference to any one event shall not be construed as continuing, as a bar to, or
as a waiver or release of, any subsequent right, remedy or recourse as to a
subsequent event.
3.0 General Provisions.
3.1 Borrower warrants and represents to FINOVA that Borrower has used and
will continue to use the loans and advances represented by this Note solely for
proper business purposes, and consistent with all applicable laws and statutes.
3.2 This Note is secured by the Collateral described in the Loan Agreement.
3.3 Borrower waives presentment, demand and protest, notice of protest
notice of presentment and all other notices and demands in connection with the
enforcement of FINOVA's rights hereunder, except as specifically provided and
called for by this Note or the Loan Agreement, and hereby consents to, and
waives notice of, the release, addition, or substitution, with or without
consideration, of any collateral or of any person liable for payment of this
Note. Any failure of FINOVA to exercise any right available hereunder or
otherwise shall not be construed as a waiver of the right to exercise the same
or as a waiver of any other right at any other time.
3.4 If this Note is not paid when due or upon the occurrence of an Event of
Default, Borrower further promises to pay all costs of collection, foreclosure
fees, reasonable attorneys fees and expert witness fees incurred by FINOVA,
whether or not suit is filed hereon, and the fees, costs and expenses as
provided in the Loan Agreement.
3.5 The contracted for rate of interest of the loan contemplated hereby,
without limitation, shall consist of the following: (i) the interest rate set
forth on the Schedule, calculated and applied to the principal balance of this
Note in accordance with the provisions of this Note: (ii) interest after an
Event of Default, calculated and applied to the amounts due under this Note in
accordance with the provisions hereof, and (iii) all Additional Sums (as herein
defined), if any. Xxxxxxxx agrees to pay an effective contracted for rate of
interest which is the sum of the above-referenced elements. All examination
fees, reasonable attorneys fees, expert witness fees, letter of credit fees,
collateral monitoring fees, closing fees, facility fees, prepayment fees,
Minimum Interest Charges, other charges, goods, things in action or any other
sums or things of value paid or payable by Borrower (collectively, the
"Additional Sums"), whether pursuant to this Note, the Loan Agreement or any
other documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction, that under
any applicable law may be deemed to be interest with respect to this lending
transaction, for the purpose of any applicable law that may limit the maximum
amount of interest to be charged with respect to this lending transaction, shall
be payable by Borrower as, and shall be deemed to be, additional interest and
for such purposes only, the agreed upon and "contracte for rate of interest" of
this lending transaction shall be deemed to be increased by the rate of interest
resulting from the inclusion of the Additional Sums.
3.6 It is the intent of the parties to comply with the usury law of the
State of Arizona (the "Applicable Usury Law"). Accordingly, it is agreed that
notwithstanding any provisions to the contrary in this Note, or in any of the
documents securing payment hereof or otherwise relating hereto, in no event
shall this Note or such documents require the payment or permit the collection
of interest in excess of the maximum Interest Rate, then in any such event (1)
the provisions of the paragraph shall govern and control, (2) neither Borrower
nor any other person or entity now or hereafter liable for the payment hereof
shall be obligated to pay the amount of such interest to the extent that it is
in excess of the Maximum Interest Rate, (3) any such excess which may have been
collected shall be either applied as a credit against the then unpaid principal
amount hereof or refunded to Borrower, at FINOVA's option, and (4) the effective
rate of interest shall be automatically reduced to the Maximum Interest Rate. It
is further agreed, without limiting the generality of the foregoing, that to the
extent permitted by the Applicable Usury Law; (x) all calculations of interest
which are made for the purpose of determining whether such rate would exceed the
Maximum Interest Rate shall be made by amortizing, prorating, allocating and
spreading during the period of the full stated term of the loan evidenced
hereby, all interest at any time contracted for, charged or received from
Borrower or otherwise in connection with such loan; and (y) in the event that
the effective rate of interest on the loan should at any time exceed the Maximum
Interest Rate, such excess interest that would otherwise have been collected had
there been no ceiling imposed by the Applicable Usury Law shall be paid to
FINOVA from time to time, if and when the effective interest rate on the loan
otherwise fall below the Maximum Interest Rate, until the entire amount of
interest which would otherwise have been collected had there been no ceiling
imposed by the Applicable Usury Law has been paid in full. Borrower further
agrees that should the Maximum Interest Rate be increased at any time hereafter
because of a change in the Applicable Usury Law, then to the extent not
prohibited by the Applicable Usury Law, such increases shall apply to all
indebtedness evidenced hereby regardless of when incurred; but, again to the
extent not prohibited by the Applicable Usury Law, should the maximum Interest
Rate be decreased because of a change in the Applicable Usury Law, such
decreases shall not apply to the indebtedness evidenced hereby regardless of
when incurred.
3.7 FINOVA may at any time transfer this Note and FINOVA's rights in any or
all collateral securing this Note, and FINOVA thereafter shall be relieved from
all liability with respect to such collateral arising after the date of such
transfer and which is not attributable to any intentional misconduct or gross
negligence of FINOVA relating thereto.
3.8 This Note shall be binding upon Borrower and its legal representatives,
successors and assigns. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of the Note shall be prohibited by or invalid under such
law, such provision shall be severable, and be ineffective to the extent of such
prohibition or invalidity, without invalidating the remaining provision of this
Note.
THIS NOTE HAS BEEN DELIVERED FOR ACCEPTANCE BY FINOVA IN PHOENIX, ARIZONA
AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO THE CONFLICTS OF LAW PROVISIONS) OF THE STATE OF ARIZONA, AS THE SAME
MAY FROM TIME TO TIME BE IN EFFECT, INCLUDING, WITHOUT LIMITATION, THE UNIFORM
COMMERCIAL CODE AS ADOPTED IN ARIZONA. BORROWER HEREBY (i) IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN MARICOPA COUNTY,
ARIZONA OVER ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY MATTER ARISING
FROM OR RELATED TO THIS NOTE; (ii) [reserved]; (iii) IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT BORROWER MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING; (iv) AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW; (v) AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR
PROCEEDING AGAINST FINOVA OR ANY OF FINOVA'S DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS OR PROPERTY, CONCERNING ANY MATTER ARISING OUT OF OR RELATING TO THIS
NOTE IN ANY COURT OTHER THAN ONE LOCATED IN MARICOPA COUNTY, ARIZONA; AND (vi)
IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING UNDER OR
IN CONNECTION WITH THIS NOTE. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR IMPAIR
FINOVA'S RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW OR FINOVA'S
RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR BORROWER'S PROPERTY
IN THE COURTS OF ANY OTHER JURISDICTION.
OMNI PRODUCTS, INC.,
an Oregon corporation
By: /s/ X. Xxxxxxx Xxx Xxxxxx
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Title: V.P. Finance and Treasurer
Federal Taxpayer Identification No.: 00-0000000
Address: 975 S.E. Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
