Exhibit 10.7
AMENDED AND RESTATED
LINE OF CREDIT NOTE
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$7,500,000.00 Pittsburgh, Pennsylvania
October 28, 1996
FOR VALUE RECEIVED, the undersigned, SEAVISION, INC., a Delaware
corporation ("Maker"), having an office at 000 Xxxxxxxxx Xxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, promises to pay to the order of NATIONAL
CITY BANK OF PENNSYLVANIA, a national banking association ("Lender"), on May 31,
1997, in immediately available funds at the Pittsburgh, Pennsylvania office of
Lender at National City Center, 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx,
00000, or at such other location as the holder hereof may designate from time to
time, the lesser of (i) the principal sum of SEVEN MILLION FIVE HUNDRED THOUSAND
AND 00/100 DOLLARS ($7,500,000.00) or (ii) the aggregate unpaid principal amount
of all line of credit loans (each a "Loan" and collectively, the "Loans") made
by Lender to Maker pursuant to a line of credit established for the benefit of
Maker. Maker may request a line of credit loan at any time during the period
from the date hereof through December 31, 1996, by giving the Lender the notice
required as set forth under Section 1.2 [Loan Requests]. The Lender may make
the Loan or Loans requested by the Maker in the Lender's sole discretion.
Subject to Section 1.6 [Interest After Default], interest on the Loans shall
accrue and be payable by the Maker in accordance with Sections 1.4 [Interest
Rate Options] and 1.9 [Payment of Interest]. This Amended and Restated Line of
Credit Note amends and restates that certain Line of Credit Note dated May 31,
1996, in the stated principal amount of $5,000,000 issued by the Maker and
payable to the Lender, as successor-in-interest to Integra Bank, a Pennsylvania-
chartered bank. All loans outstanding under the Line of Credit Note dated May
31, 1996, and all accrued and unpaid interest thereon shall as of the date of
hereof be evidenced by this Amended and Restated Note.
1.1 Definitions. When used herein, the following terms shall have the
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following meanings:
Authorized Persons shall mean collectively and Authorized Person shall
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mean separately an officer of the Borrower or an agent of the Borrower who is
authorized to borrow hereunder and/or convert Loans from one Interest Rate
Option to another Interest Rate Option, which authority shall be set forth in a
writing delivered to the Lender on behalf of the board of directors of the
Borrower and upon which authority the Lender may conclusively rely until it is
amended or canceled by written notice to the Lender from the Borrower.
Borrowing Tranche shall mean specified portions of the Loans
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outstanding as follows: (i) any Loans to which either a Euro-Rate Option applies
which become subject to the same Interest Rate Option and which have the same
Interest Period shall constitute one Borrowing Tranche, and (ii) all Loans to
which a Prime Rate Option applies shall constitute one Borrowing Tranche.
Business Day shall mean a day on which Xxxxxx's offices in Pittsburgh,
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Pennsylvania are open for business.
Default Rate shall mean the rate or rates determined from time to time
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pursuant to Section 1.6.
Dollars and the symbol $ shall mean lawful money of the United States
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of America.
Euro-Rate shall mean, with respect to any Loan comprising any
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Borrowing Tranche to which a Euro-Rate Option applies for any Interest Period,
the interest rate per annum determined by the Lender by dividing (the resulting
quotient rounded upward to the nearest 1/16th of 1% per annum) (i) the rate of
interest determined by the Lender in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the eurodollar
rate two (2) Business Days prior to the first day of such Interest Period for an
amount comparable to such Loan and having a borrowing date and a maturity
comparable to such Interest Period by (ii) a number equal to 1.00 minus the
Euro-Rate Reserve Percentage. The Euro-Rate shall be adjusted with respect to
any Euro-Rate Option outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date. The Lender shall give
prompt notice to the Maker of the Euro-Rate as determined or adjusted in
accordance herewith, which determination shall be conclusive absent manifest
error.
Euro-Rate Option shall mean the option of the Maker to have Loans bear
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interest at the rate and under the terms and conditions set forth in Section 1.4
(a)(ii).
Euro-Rate Reserve Percentage shall mean the maximum percentage
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(expressed as a decimal rounded upward to the nearest 1/100 of 1%) as determined
by the Lender which is in effect during any relevant period, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency Liabilities") of a member bank in such System.
Event of Default shall mean any of the Events of Default described in
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Section 1.14.
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Guarantees shall mean the Guaranty and Suretyship Agreements given by
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each of the Guarantors in favor of the Lender with respect to the Loans.
Guarantors shall mean Xxxxx Xxxxxx, Xx., Xxxxxx X. Xxxxxx, Xxxxxxx X.
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Xxxxxxxx, Xxxxx X. Xxxxxx and Lyndhurst Associates, a Pennsylvania limited
partnership.
Indebtedness shall mean all of the Maker's liabilities, obligations
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and indebtedness of any and every kind and nature, including, without
limitation, obligations for borrowed money and to trade creditors, whether
heretofore, now or hereafter owing, due or payable from Maker to any person and
howsoever evidenced, created, incurred, acquired or owing, whether primary,
secondary, direct, contingent, fixed, matured, liquidated or otherwise. Without
in any way limiting the generality of the foregoing, Indebtedness specifically
includes (i) all indebtedness guaranteed, directly or indirectly, in any manner,
or endorsed (other than for collection or deposit in the ordinary course of
business) or discounted with recourse; (ii) all obligations or liabilities of
any person that are secured by any lien upon property owned by a Maker, even
though Maker has not assumed or become liable for the payment thereof; (iii) all
obligations or liabilities created or arising under any lease of real or
personal property or conditional sale or other title retention agreement with
respect to property used or acquired by Maker, even though the rights and
remedies of the lessor, seller or lender thereunder are limited to repossession
of such property; (iv) all unfunded pension fund obligations and liabilities;
and (v) deferred taxes.
Interest Payment Date shall mean each date specified for the payment
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of interest in Section 1.9.
Interest Period shall have the meaning assigned to such term in
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Section 1.5.
Interest Rate Option shall mean any Euro-Rate Option or the Prime Rate
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Option.
Law shall mean any law (including common law), constitution, statute,
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treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree or award of any national, federal, state, local or
other government or political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
Loans shall mean collectively and Loan shall mean separately the line
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of credit loans made by the Lender to the Maker and evidenced by this Note.
Loan Request shall mean a request for Loans made in accordance with
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Section 1.2 or a request to select, convert to or renew a Euro-Rate Option in
accordance with Section 1.5.
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Material Adverse Change shall mean any set of circumstances or events
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which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of this Note or any
Guaranty, (b) is or could reasonably be expected to be material and adverse to
the condition (financial or otherwise) or business operations of the Maker or to
the prospects of the Maker, (c) impairs materially or could reasonably be
expected to impair materially the ability of the Maker to duly and punctually
pay or perform its obligations under this Note, or (d) materially impairs or
could reasonably be expected to materially impair the ability of the Lender to
enforce its legal remedies pursuant to this Agreement or any Guaranty.
Month, with respect to an Interest Period under the Euro-Rate Option,
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shall mean the interval between the days in consecutive calendar months
numerically corresponding to the first day of such Interest Period. If any
Euro-Rate Interest Period begins on a day of a calendar month for which there is
no numerically corresponding day in the month in which such Interest Period is
to end, the final month of such Interest Period shall be deemed to end on the
last Business Day of such final month.
Note shall mean this Amended and Restated Line of Credit Note and all
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amendments, modifications, extensions, renewals and replacements thereof.
Person shall mean any individual, sole proprietorship, partnership,
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joint venture, trust, unincorporated organization, association, corporation,
institution, entity, party or government (whether national, federal, state,
county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
Prime Rate shall mean the interest rate per annum announced from time
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to time by the Lender at its principal office in Pittsburgh, Pennsylvania as its
then prime rate, which rate may not be the lowest rate then being charged
commercial borrowers by the Lender.
Prime Rate Option shall mean either the option of the Maker to have
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Loans bear interest at the Prime Rate under the terms and conditions set forth
in Section 1.4 (a)(i).
Scheduled Maturity Date shall mean May 31, 1997.
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1.2 Loan Requests.
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The Maker may from time to time through one or more of its Authorized
Persons (a) prior to December 31, 1996, request the Lender to make a Loan to the
Maker, and (b) prior to May 31, 1997 request the Lender to renew or convert the
Interest Rate Option applicable to an existing Loan pursuant to Section 1.4
[Interest Rate Options] and Section 1.5 [Interest Periods], in the case of each
of (a) and (b), by delivering to the Lender, not later than 10:00 A.M.
Pittsburgh time (i) two (2) Business Days prior to the proposed borrowing date
with respect to the making of a Loan to which the Euro-Rate Option applies or
the conversion to or the renewal of the Euro-Rate Option for any Loan; and (ii)
one (1) Business Day prior to either the proposed borrowing date with respect to
the making of a Loan to which the Prime Rate Option applies or the last day of
the preceding Interest Period with respect to the conversion to the Prime Rate
Option for any Loan, of a duly completed request therefor substantially in the
form of Exhibit A or a request by telephone immediately confirmed in writing by
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letter, facsimile or telex in such form (each, a "Loan Request"), it being
understood that the Lender may rely on the authority of any individual making
such a telephonic request without the necessity of receipt of such written
confirmation. Each such Loan Request shall be irrevocable and shall specify (i)
the proposed borrowing date; (ii) the aggregate amount of the proposed Loan
which shall be in integral multiples of One Hundred Thousand ($100,000.00) and
not less than Three Hundred Thousand Dollars ($300,000.00) for each Loan to
which the Euro-Rate Option applies and not less than the lesser of One Hundred
Thousand ($100,000.00) or the maximum amount available for the Loan to which the
Prime Rate Option applies; (iii) whether the Euro-Rate Option or Prime Rate
Option shall apply to the proposed Loan, and (iv) in the case of a Loan to which
the Euro-Rate Option applies, an appropriate Interest Period, the last day of
which shall be a date which precedes Scheduled Maturity Date. Lender shall have
no obligation to make a new loan to the Maker hereunder. Provided no Event of
Default has occurred and subject to Section 1.7 [Euro-Rate Unascertainable] and
the other provisions of this Note, the Lender shall convert the Loans as between
the Prime Rate Option and Euro-Rate Option pursuant to the Loan Requests
submitted by the Maker.
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1.3 Conditions to Loans.
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Notwithstanding the discretionary nature of the Loans and without
affecting in any manner the rights of the Lender under this Agreement, it is
understood and agreed that the Lender shall not make any Loans until the Lender
shall have received the following documents:
(a) this Note, duly executed and delivered;
(b) the Guarantees, xxxx executed and delivered;
(c) a certificate of the Maker dated the date of this Note and signed
by the secretary or an assistant secretary of the Maker,
certifying as to (a) the Maker's certificate of incorporation,
and (b) certified copies of corporate resolutions authorizing the
execution and delivery of this Note;
(d) a certificate of Lyndhurst Associates dated the date of this Note
and signed by the general partner of such Guarantor, certifying
as to (a) Lyndhurst Associates' organizational documents
including its certificate of limited partnership and partnership
agreement and good standing in the state in which it is
organized, and (b) certified copies of partnership resolutions
authorizing the execution and delivery of its Guarantee;
(e) opinion of Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, counsel for the Maker
and Lyndhurst Associates, dated the date of this Note, in form
and substance satisfactory to the Lender and as to such other
legal matters relevant to the transactions contemplated hereby as
the Lender may reasonably request; and
(f) such other documents and certificates as to the transactions
contemplated by this Note and the Guarantees as the Lender may
reasonably request.
1.4 Interest Rate Options.
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Maker shall pay interest in respect of the aggregate outstanding
unpaid principal amount of the Loans as selected by it from the Prime Rate
Option or the Euro-Rate Option set forth below applicable to the Loans, it being
understood that, subject to the provisions of this Agreement, including without
limitation Section 1.2 [Loan Requests], the Maker may select different Interest
Rate Options and different Interest Periods to apply
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simultaneously to the Loans and may convert to or renew one or more Interest
Rate Options with respect to all or any portion of the Loans, provided that
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there shall not be at any one time outstanding more than three (3) Borrowing
Tranches in the aggregate among all the Loans. If at any time the designated
rate applicable to any Loan made by the Lender exceeds the Lender's highest
lawful rate, the rate of interest on the Loan shall be limited to the Lender's
highest lawful rate.
(a) The Maker shall have the right to select from the following
Interest Rate Options applicable to the Loans:
(i) a fluctuating rate per annum (computed on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed) equal to the
Prime Rate, such interest rate to change automatically from time to time
effective as of the effective date of each change in the Prime Rate; or
(ii) a rate per annum (computed on the basis of a year of 360 days and
actual days elapsed) equal to the Euro-Rate plus one and one-half percent
(1-1/2%).
(b) The Maker may call the Lender on or before the date on which a
Loan Request is to be delivered to receive an indication of the
rates then in effect, but it is acknowledged that such indication
shall not be binding on the Lender nor affect the rate of
interest which thereafter is actually in effect when the election
is made.
1.5 Interest Periods.
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At any time when the Maker shall select, convert to or renew a Euro-
Rate Option, the Maker shall notify the Lender thereof at least two (2) Business
Days prior to the effective date of such Euro-Rate Option by delivering a Loan
Request. In the case of the Euro-Rate Option, such notice shall specify an
interest period (the "Interest Period") during which such Interest Rate Option
shall apply, such Interest Period to be one, two, three, four, five or six
Months, provided, that:
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(a) Any Interest Period which would otherwise end on a date which is
not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in the next calendar
month, in which case such Interest Period shall end on the next
preceding Business Day;
(b) Any Interest Period selected to apply to any Loan shall end
before the Scheduled Maturity Date;
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(c) Each Loan with respect to which the Euro-Rate Option applies
shall be in integral multiples of One Hundred Thousand
($100,000.00) and not less than Three Hundred Thousand Dollars
($300,000.00); and
(d) In the case of the renewal of a Euro-Rate Option at the end of an
Interest Period, the first day of the new Interest Period shall
be the last day of the preceding Interest Period, without
duplication in payment of interest for such day.
1.6 Interest After Default.
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To the extent permitted by Law, upon the occurrence of an Event of
Default and until such time such Event of Default shall have been cured, all
amounts payable by the Maker hereunder, including without limitation principal,
interest and the costs and expenses of the Lender required to be reimbursed by
the Maker, if not paid when due shall bear interest at a rate per annum equal to
the sum of the Prime Rate plus two (2%) per annum (the "Default Rate") from the
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time such obligations become due and payable and until paid in full. The Maker
acknowledges that such increased rates reflect, among other things, the fact
that such Loans or other amounts have become a substantially greater risk given
their default status and that the Lender is entitled to additional compensation
for such risk; and, all such interest shall be payable by the Maker upon demand
by the Lender.
1.7 Euro-Rate Unascertainable; Illegality; Increased Costs; etc.
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(a) If on any date on which a Euro-Rate would otherwise be
determined, the Lender shall have determined that (i) adequate
and reasonable means do not exist for ascertaining such Euro-
Rate, or (ii) a contingency has occurred which materially and
adversely affects the secondary market for the London interbank
eurodollar market relating to the Euro-Rate, the Lender shall
have the rights specified in Subsection (c) below.
(b) If at any time the Lender shall have determined that (i) the
making, maintenance or funding of any Loan to which a Euro-Rate
Option applies has been made impracticable or unlawful by
compliance by the Lender in good faith with any Law or any
interpretation or application thereof by any governmental
authority or with any request or directive of any such
governmental authority (whether or not having the force of Law),
(ii) such Euro-Rate Option will not adequately and fairly reflect
the cost to the Lender of the establishment or maintenance of any
such Loan, or (iii) after making all reasonable efforts, deposits
of the relevant amount in Dollars for the relevant Interest
Period for a
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Loan to which a Euro-Rate Option applies are not available to the
Lender in the London interbank market, then the Lender shall have
the rights specified in Subsection(c) below.
(c) In the case of any event specified in subsection (a) or (b) of
this Section 1.7, the Lender shall promptly so notify the Maker.
Upon such date as shall be specified in such notice (which shall
not be earlier than the date such notice is given) the obligation
of the Lender to make available the Euro-Rate Option on the Loans
shall be suspended until the Lender shall have later notified the
Maker of the Lender's determination that the circumstances giving
rise to such previous determination no longer exist. If at any
time the Lender makes a determination under subsection (a) or (b)
and the Maker has previously notified the Lender of its selection
of, conversion to or renewal of a Euro-Rate Option and such
Interest Rate Option has not yet gone into effect, such
notification shall be deemed to provide for selection of,
conversion to or renewal of the Prime Rate Option otherwise
available with respect to such Loans.
1.8 Selection of Interest Rate Options.
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If the Maker fails to select a new Interest Period to apply to any
Loans as to which the Euro-Rate Option applies at the expiration of an existing
Interest Period applicable to such Loans in accordance with the provisions of
Section 1.5 [Interest Periods], the Maker shall be deemed to have converted such
Loan to the Prime Rate Option commencing upon the last day of the existing
Interest Period.
1.9 Payment of Interest.
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The Maker shall pay all interest accrued on the Loans on December 31,
1996, and March 31, 1997, with all accrued interest, if not sooner paid, due and
payable on the Scheduled Maturity Date. The interest rates provided for in
Sections 1.4 [Interest Rate Options] and 1.6 [Interest After Default] shall
continue to apply whether or not judgment shall be entered on this Note.
1.10 Indemnification For Prepayment.
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The Maker shall indemnify the Lender against all liabilities, losses
or expenses, including loss of margin, any loss or expense incurred in
liquidation or employing deposits from third parties and any loss or expense
incurred in connection with funds acquired by the Lender to fund or maintain the
Loans subject to the Euro-Rate Option, which the Lender sustains or incurs as a
consequence of the payment, prepayment,
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conversion or renewal of any of the Loans to which the Euro-Rate Option applies
on a day other than the last day of the corresponding Interest Period (whether
or not such payment or prepayment is mandatory, voluntary or automatic and
whether or not such payment or prepayment is then due.).
1.11 Increased Cost Provisions.
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(a) If, after the date of execution and delivery of this Note, any
enactment, promulgation or adoption of, or change in, any
applicable Law or in the interpretation or administration thereof
by any court, administrative or governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Lender or any
affiliate of the Lender with any request or directive issued
after the date hereof (whether or not having the force of law) of
any such authority, central bank or comparable agency, shall
either:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, a
request or requirement which affects the manner in which the Lender or
any affiliate of the Lender allocates capital resources to the
Lender's or any affiliate of the Lender's commitments) affecting or
concerning the Lender's obligations under this Note,
(ii) subject the Lender or any affiliate of the Lender to any tax
or change the Lender's or any affiliate of the Lender's basis of
taxation (other than a change in a rate of tax based on the Lender's
overall net income) as a result of or in connection with this Note, or
(iii) impose on the Lender or any affiliate of the Lender any
other condition regarding this Note, and the result of any event
referred to in clause (i), (ii) or (iii) of this sentence shall be to
increase the direct or indirect cost to the Lender or to reduce the
amounts receivable by the Lender hereunder with respect to this Note
(which increase in cost or reduction in amounts receivable shall be
determined by the Lender's reasonable allocation of such cost increase
or reduction in amounts receivable resulting from such event), then
within ten (10) Business Days after demand by the Lender, the Maker
shall pay to the Lender, from time to time as specified by the Lender,
additional amounts that in the aggregate shall be sufficient to
compensate the Lender on an after-tax basis for such increased cost or
reduction in amounts receivable. A certificate as to such increased
cost or reduction in amounts receivable by the
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Lender as a result of any event mentioned in clause (i), (ii) or (iii)
of the immediately preceding sentence submitted by the Lender to the
Maker shall, in absence of manifest error, be conclusive and binding
for all purposes.
(b) If (i) any adoption of or any change in the interpretation or
administration of any Law, or (ii) compliance with any rule,
regulation, guideline, request or directive of any central bank
or other governmental authority or quasi-governmental authority
exercising control over banks or financial institutions generally
or any court (whether or not having the force of law), or (iii)
any change in the force or effectiveness of any of the
regulations set forth at 12 C.F.R. Part 208 (Appendix A) and 12
C.F.R. Part 225 (Appendix A) is determined by the Lender to
require that the commitments of the Lender hereunder (including,
without limitation, commitments and obligations in respect of
Liabilities permitted hereunder) be treated as an asset or
otherwise be included for purposes of calculating the appropriate
amount of capital to be maintained by the Lender or any
corporation controlling the Lender (a "Change in Law"), the
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result of which is to reduce the rate of return on the Lender's
capital as a consequence of such commitments to a level below
that which the Lender could have achieved but for such Change in
Law, taking into consideration the Lender's policies with respect
to capital adequacy and reserves, by an amount which the Lender
deems to be material, the Lender shall deliver to the Maker a
statement of the amount necessary to compensate the Lender for
the reduction in the rate of return on its capital attributable
to such commitments (the "Capital Compensation Amount"). The
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Lender shall determine the Capital Compensation Amount in good
faith, using reasonable attribution and averaging methods. The
Lender shall from time to time notify the Makers of the amounts
so determined. Such amount shall be due and payable by the Maker
to the Lender ten (10) Business Days after such notice is given.
As soon as practicable after any Change in Law, the Lender shall
submit to the Maker estimates of the Capital Compensation Amounts
that would be payable as a function of the Lender's commitments
hereunder.
(c) All amounts payable pursuant to Sections (a) and (b) of this
Section 1.11 shall be additional liabilities hereunder. Any such
amount not paid when due shall bear interest from the date due
until paid at the Default Rate
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1.12 Reporting Requirements.
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The Maker shall deliver and cause to be delivered to the Lender the
following reports until such time as all Indebtedness of the Maker evidenced by
this Note is indefeasibly paid in full: (i) the financial statements of the
Maker prepared by the Maker's certified public accountants acceptable to the
Lender and provided on or before June 30 of each year; (ii) the financial
statements of Lyndhurst Associates and Xxxxx Xxxxxx, Xx. prepared on a tax basis
by said Guarantors' certified public accountants acceptable to the Lender and
provided on or before June 30 of each year; and (iii) the personal financial
statement of the Guarantors other than Lyndhurst Associates and Xxxxx Xxxxxx,
Xx. on or before June 30 of each year.
1.13 Maker Representations; Financial Covenant.
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(a) The Maker represents that it has the power and has been duly
authorized by all requisite action to execute and deliver this Note and to
perform its obligations hereunder. This Note and the Guarantees have been duly
executed and delivered by the Maker and each Guarantor, respectively, and
constitutes the legal, valid and binding obligations of the Maker and each
Guarantor, enforceable against the Maker and each Guarantor in accordance with
their respective terms, except to the extent that enforceability of any of the
terms may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforceability of creditors' rights generally
or limiting the right of specific performance. Neither this Note nor the
consummation of the transactions contemplated herein nor the performance by the
Maker or the Guarantors of their obligations hereunder or under the Guarantees
will (i) violate any Law to which any such party is subject; (ii) conflict with
or result in a breach of the Maker's certificate of incorporation or bylaws or
Lyndhurst Associates' partnership agreement or certificate of limited
partnership or any agreement or instrument to which the Maker or any Guarantor
is subject or by which its or his respective properties are bound or (iii)
result in the creation or imposition of any lien, security interest or
encumbrance on any property of the Maker, or any Guarantor, whether now owned or
hereafter acquired.
(b) The Maker shall not permit its Adjusted Net Worth (as hereinafter
defined) to be less One Dollar ($1.00) from and after December 31, 1996.
"Adjusted Net Worth" shall mean the Borrower's stockholders' equity (as
determined in accordance with generally accepted accounting principles) plus all
liabilities of the Borrower subordinated to the Indebtedness evidenced by this
Note pursuant to subordination agreements with terms satisfactory to the Lender
in its sole discretion.
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1.14 Events of Default.
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Maker shall be in default under this Note upon the happening of any of
the following Events of Default:
(a) default in the payment when due of any installment of interest or
other payment required under this Note;
(b) any warranty, representation or statement made herein or
furnished to Lender by or on behalf of the Maker or a Guarantor
proves to have been false or misleading in any material respect
when made or furnished;
(c) any material default in the performance by the Maker of any
condition or covenant contained in this Note or by a Guarantor of
any condition or covenant contained in its or his respective
Guarantee;
(d) the occurrence of a Material Adverse Change;
(e) any default in the payment of or event which results in the
acceleration of Indebtedness in excess of $500,000 owed to any
Person under any note, indenture, contract or undertaking by the
Maker or any Guarantor;
(f) a judgment shall be entered against the Maker or any Guarantor by
a court having jurisdiction of the premises in any amount in
excess of $500,000;
(g) a proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief
in respect of Maker or any Guarantor in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or for the appointment of a receiver,
liquidator, assignee, custodian trustee, sequestrator (or similar
official) of Maker or any Guarantor or for any substantial part
of its or his property, or for the winding-up or liquidation of
its or his affairs, and such proceeding shall remain undismissed
or unstayed and in effect for a period of 60 consecutive days or
such court shall enter a decree or order granting any of the
relief sought in such proceeding; or
(h) the Maker or any Guarantor shall commence a voluntary case under
any applicable bankruptcy, insolvency or similar law now or
hereafter
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in effect, shall consent to the entry of an order for relief in
an involuntary case under any such law, or shall consent to the
appointment of any of the aforesaid parties of itself or himself
or for any substantial part of its or his property, or shall make
a general assignment for the benefit of creditors or shall fail
generally to pay its or his debts as they become due or shall
take any action in furtherance of the foregoing.
Upon the occurrence of any of the Events of Default mentioned in
clauses (a) through (f) hereof and at any time thereafter as long as any such
Event of Default is continuing, Lender may declare all liabilities and
obligations of Maker to Lender, including those evidenced by this Note,
immediately due and payable and the same shall thereupon become immediately due
and payable without any further action on part of Lender, and upon the
occurrence of any Event of Default mentioned in clauses (g) or (h) hereof all
liabilities and obligations of Maker to Lender, including those evidenced by
this Note, shall immediately become due and payable without any action upon the
part of Lender.
Any notice or other written communication required hereunder shall be
in writing, and shall be deemed to have been validly served, given or delivered
(i) upon deposit in the United States mail, with proper postage prepaid, (ii) by
hand delivery, (iii) by overnight express mail courier, or (iv) by telecopier,
and addressed to the party to be notified at the address set forth below or to
such other address as each party may designate for itself in writing by like
notice.
To the Lender:
National City Bank of Pennsylvania
National City Center
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
Corporate Banking
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxxxx Professional Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esquire
Telecopier: (000) 000-0000
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To the Borrower:
SeaVision, Inc.
000 Xxxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
with a copy to:
The Hawthorne Group
500 Greentree Commons
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopier: (000) 000-0000
and
Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esquire
Telecopier: (000) 000-0000
Maker hereby waives presentment, demand, protest or notice of any kind
in connection with this Note.
Maker shall pay Lender on demand any reasonable out-of-pocket expenses
(including reasonable legal fees) arising out of or in connection with any
action or proceeding (including any action or proceeding arising in or related
to any insolvency, bankruptcy or reorganization involving or affecting Maker)
taken to protect, enforce, determine or assert any right or remedy under this
Note and any mortgage or security agreement, including the collateral covered
thereby, securing the same. Any attorneys' fees to which the holder hereof may
be entitled pursuant to the "confession of judgment" clause below shall be
offset by the aggregate amount of the legal fees to which such holder is
entitled under the immediately preceding sentence.
This Note shall bind Maker and the successors and assigns of Maker,
and the benefits hereof shall inure to the benefit of Xxxxxx and its successors
and assigns. All references herein to "Maker" shall be deemed to apply to Maker
and the successors and
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assigns of Maker and all references herein to "Lender" shall be deemed to apply
to Lender and its successors and assigns.
This Note and any other documents delivered in connection herewith and
the rights and obligations of the parties hereto and thereto shall for all
purposes be governed by and construed and enforced in accordance with the
substantive law of the Commonwealth of Pennsylvania without giving effect to the
principles of conflict of laws.
THE MAKER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS, AFTER
CONSULTATION WITH ITS COUNSEL, THAT THE PROVISIONS OF THE FOLLOWING PARAGRAPH
COULD ENABLE THE LENDER TO OBTAIN A JUDGMENT AGAINST THE MAKER AND COMMENCE
EXECUTION PROCEEDINGS THAT RESULT IN THE SEIZURE OF ASSETS OF THE MAKER IN
EITHER CASE, WITHOUT THE MAKER HAVING THE BENEFIT OF PRIOR NOTICE OR A PRIOR
HEARING; AND (ii) THE MAKER NEVERTHELESS KNOWINGLY AND VOLUNTARILY AGREES TO
SUCH POSSIBLE CONSEQUENCES AND THE PROVISIONS OF THE FOLLOWING PARAGRAPH.
MAKER DOES HEREBY EMPOWER THE PROTHONOTARY OR ANY ATTORNEY OF ANY
COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR MAKER AND,
WITH OR WITHOUT ONE OR MORE COMPLAINTS FILED, CONFESS JUDGMENT OR JUDGMENTS
AGAINST MAKER IN ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA AT
ANY TIME ON OR AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT IN FAVOR OF LENDER,
ITS SUCCESSORS AND ASSIGNS, FOR THE UNPAID PRINCIPAL BALANCE OF THIS NOTE AND
ALL INTEREST ACCRUED XXXXXX, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S
COMMISSION OF FIVE PERCENT (5%) FOR COLLECTION OF SUCH SUMS, AND MAKER HEREBY
FOREVER WAIVES AND RELEASES ANY AND ALL ERRORS IN SAID PROCEEDINGS AND WAIVES
STAY OF EXECUTION AND STAY, CONTINUANCE OR ADJOURNMENT OF SALE ON EXECUTION.
THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST MAKER SHALL NOT
BE EXHAUSTED BY ONE OR MORE EXERCISES THEREOF, AND MAY BE EXERCISED FROM TIME TO
TIME AND AS OFTEN AS LENDER OR ITS SUCCESSORS AND ASSIGNS SHALL DEEM NECESSARY
OR DESIRABLE.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, Maker, intending to be legally bound, has executed
this Note on the day and year first above written with the intention that this
Note shall constitute a sealed instrument.
ATTEST: SEAVISION, INC.
By (SEAL)
-------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxxxx
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