Exhibit 10.9
AMENDED AND RESTATED TERM LOAN NOTE
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$737,000 Newark, Delaware
November 24, 1997
FOR VALUE RECEIVED, ASTROPOWER, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of MELLON BANK (DE), N.A. (the
"Bank") on or before the Termination Date, the principal amount of SEVEN HUNDRED
THIRTY SEVEN THOUSAND DOLLARS ($737,000) in consecutive, monthly principal
installments in the amount of $17,500 plus interest, each payable on the first
day of each month beginning December 1, 1997, and a final installment consisting
of the entire unpaid principal balance hereof, together with all accrued but
unpaid interest hereon, due and payable on the earlier to occur of: (i) March
31, 1999; or (ii) at the option of the Bank, the occurrence of an Event of
Default . Terms capitalized but not defined herein shall have the meanings given
to them in Amended and Restated Loan Agreement dated November 24, 1997 by and
between the Borrower and the Bank (as amended from time to time through the date
hereof, the "Loan Agreement"). Reference is made to the Loan Agreement and the
other Loan Documents for a statement of the terms and conditions under which the
loans evidenced hereby have been made, are secured, and may be prepaid or
accelerated.
BACKGROUND
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This Amended and Restated Revolving Credit Note (the "Note") arises out of
the transactions described in the Loan Agreement. Prior to execution of this
Note, the Borrower executed, inter alia, that certain Note and Security
Agreement dated May 22, 1996 and that certain Note and Security Agreement dated
February 4, 1993 (collectively, and as amended prior to the date hereof, the
"Existing Note").
The circumstances giving rise to this Note are set forth in the Background
section of the Loan Agreement which, together with the rest of the Loan
Documents, is incorporated herein by reference as if set forth in full.
THIS NOTE IS ISSUED IN ORDER TO AMEND, RESTATE AND EVIDENCE AND TO BE A
SUBSTITUTE FOR, BUT NOT TO BE A PAYMENT, SATISFACTION, CANCELLATION OR A
NOVATION OF, THE PAYMENT PROVISIONS (BUT NOT THE SECURITY/COLLATERAL PROVISIONS)
OF THE EXISTING NOTE. THE SUBSTITUTION OF THIS NOTE FOR THE EXISTING NOTE DOES
NOT EXTINGUISH THE INDEBTEDNESS EVIDENCED BY THE EXISTING NOTE OR ANY PORTION
THEREOF AND THE LIABILITIES OF THE BORROWER THEREUNDER AND HEREUNDER ARE
CONTINUOUS. THIS NOTE DOES NOT EVIDENCE ANY NEW ADVANCES OF CREDIT OR REFLECT
ANY AGREEMENT BY THE BANK FOR THE EXTENSION OF ANY ADDITIONAL CREDIT TO THE
BORROWER EXCEPT AS SPECIFICALLY SET FORTH IN THE LOAN AGREEMENT. THIS NOTE IS
NOT
INTENDED TO MODIFY OR ALTER IN ANY WAY THE SECURITY AND COLLATERAL PROVISIONS OF
THE EXISTING NOTE NOR IS IT INTENDED IN ANY WAY TO ALTER THE PRIORITY OF ANY
SECURITY INTEREST HELD BY THE BANK.
ADDITIONAL TERMS
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Until maturity (whether by acceleration or otherwise) interest shall accrue
on the outstanding principal balance of the Note in accordance with the rates
set forth in Article II of the Credit Agreement. Interest shall be calculated
on the basis of a 360-day year, counting the actual number of days elapsed.
Subsequent to maturity or the occurrence of any Event of Default, interest shall
accrue at an annual rate which shall be two percent (2%) above the rate of
interest otherwise payable under the Loan Agreement. Accrued interest shall be
payable monthly on the first day of each month commencing with the month
immediately following date hereof and if not paid when due, shall be added to
principal.
All amounts payable by the Borrower to the Bank hereunder shall be paid
directly to the Bank at its offices 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx (or at such other address of which the Bank shall give notice to
the Borrower in accordance with the Loan Agreement) in immediately available
funds. The Bank may, and the Borrower specifically authorizes the Bank to debit
the Borrower's accounts at the Bank, such amounts as are required to pay
interest, principal and/or all other amounts due hereunder as and when such
amounts become due hereunder.
THE BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE BANK, BY ITS
ATTORNEY, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT OR AT ANY TIME THEREAFTER,
TO APPEAR FOR THE BORROWER AND, WITHOUT DECLARATION OR STAY OF EXECUTION,
CONFESS AND ENTER JUDGMENT AGAINST THE BORROWER IN FAVOR OF THE BANK IN ANY
JURISDICTION IN WHICH THE BORROWER IS LOCATED. SUCH JUDGMENT SHALL BE FOR ALL
OBLIGATIONS TOGETHER WITH COSTS OF SUIT AND WITH ACTUAL COLLECTION FEES
(INCLUDING ATTORNEYS' FEES) WITH RELEASE OF ALL ERRORS AND THE RIGHT TO ISSUE
EXECUTION FORTHWITH. THE BORROWER HEREBY KNOWINGLY, WILLINGLY, AND
INTENTIONALLY WAIVES AND RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT,
STAY, OR EXEMPTION LAW OF ANY STATE NOW IN FORCE OR HEREINAFTER ENACTED. IF A
COPY OF THIS NOTE VERIFIED BY AFFIDAVIT OF THE BANK OR A PERSON ON BEHALF OF THE
BANK SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL NOTE AS A WARRANT OF ATTORNEY. THIS AUTHORITY AND POWER TO APPEAR FOR
AND CONFESS AND ENTER JUDGMENT AGAINST THE BORROWER SHALL NOT BE EXHAUSTED BY
THE SINGLE EXERCISE THEREOF AND SHALL CONTINUE UNTIL THE OBLIGATIONS ARE FULLY
PAID, PERFORMED, DISCHARGED AND SATISFIED. THE BORROWER HEREBY WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS NOTE WITH ITS LEGAL COUNSEL, INCLUDING,
WITHOUT LIMITATION, THE PROVISIONS
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CONTAINED IN THIS CONFESSION OF JUDGMENT SECTION. THE BORROWER FURTHER
ACKNOWLEDGES THAT THE MEANING AND EFFECT OF THIS CONFESSION OF JUDGMENT HAVE
BEEN EXPLAINED TO IT BY ITS LEGAL COUNSEL.
The Borrower hereby waives the requirements of demand, presentment,
protest, notice of protest and dishonor and all other demands or notices of any
kind in connection with the delivery, acceptance, performance, default, dishonor
or enforcement of this Note.
The construction, interpretation and enforcement of this Note shall be
governed by the internal laws of the State of Delaware without reference to
conflicts of laws principles.
REMAINDER OF XXXX INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the Borrower
has caused this Note to be executed by its duly authorized officer as of the day
and year first above written.
AstroPower, Inc.
By:
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Name:
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Title:
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