EXHIBIT 10.9
SECOND AMENDED AND RESTATED REVOLVING CREDIT NOTE
$10,000,000 September 10, 2001
FOR VALUE RECEIVED, the undersigned Robotic Vision Systems,
Inc.(successor by merger to CiMatrix LLC, Acuity Imaging LLC, Systemation
Engineered Products, Inc., Vanguard Automation, Inc. and Northeast Robotics LLC)
(each a "Borrower" and collectively "Borrowers"), jointly and severally, by this
promissory note (hereinafter, called this "Note"), absolutely and
unconditionally promise to pay to the order of PNC Bank, National Association
(hereinafter, together with its successors in title and assigns, called the
"Bank"), the principal sum of Ten Million Dollars ($10,000,000), or so much
thereof as shall have been advanced by the Bank to the Borrowers by way of
Advances under the Credit Agreement (as hereinafter defined) and shall remain
outstanding, such payment to be made as hereinafter provided, and to pay
interest on the principal sum outstanding hereunder from time to time from the
date hereof until the said principal sum or the unpaid portion thereof shall
have become due and payable as hereinafter provided.
Capitalized terms used herein without definition shall have the
meaning set forth in the Credit Agreement.
The unpaid principal (not at the time overdue) under this Note shall
bear interest at the rate or rates from time to time in effect under the Credit
Agreement. Accrued interest on the unpaid principal under this Note shall be
payable on the dates specified in the Credit Agreement.
On April 28, 2003, the date of the final maturity of this Note,
there shall become absolutely due and payable by the Borrowers hereunder, and
the Borrowers hereby promise to pay to the Bank, the balance (if any) of the
principal hereof then remaining unpaid, all of the unpaid interest accrued
hereon and all (if any) other amounts payable on or in respect of this Note or
the indebtedness evidenced hereby.
This Note is intended to replace that certain Amended and Restated
Revolving Credit Note in the amount of $20,000,000 dated as of June 12, 2000.
Said note was canceled upon reissuance of this Note, and this Note is neither a
satisfaction nor novation thereof.
The Borrowers authorize the Bank to make or cause to be made at or
about the time of any Advance or at the time of receipt of any payment of
principal of this Note, an appropriate notation on the Schedule annexed hereto
reflecting the making of such Advance or the receipt of such payment. The
outstanding amount of the Advances set forth on the Schedule annexed hereto
shall be prima facie evidence of the principal amount thereof owing and unpaid
to the Bank, but the failure to record, or any error in so recording, any such
amount on the Schedule shall not limit or otherwise affect the obligation of the
Borrowers hereunder or under the Credit Agreement to make payments of principal
of and interest on this Note when due.
Each overdue amount (whether of principal, interest or otherwise)
payable on or in respect of this Note or the indebtedness evidenced hereby shall
(to the extent permitted by applicable law) bear interest at the rates and on
the terms provided by the Credit Agreement. The unpaid interest accrued on each
overdue amount in accordance with the foregoing terms of this paragraph shall
become and be absolutely due and payable by the Borrowers to the Bank on demand
by the Bank. Interest on each overdue amount will continue to accrue as provided
by the foregoing terms of this paragraph, and will (to the extent permitted by
applicable law) be compounded daily until the obligations of the Borrowers in
respect of the payment of such overdue amount shall be discharged (whether
before or after judgment).
Each payment of principal, interest or other sum payable on or in
respect of this Note or the indebtedness evidenced hereby shall be made by the
Borrowers directly to the Bank in dollars, for the account of the Bank, at the
address of the Bank set forth in the Credit Agreement, on the due date of such
payment, and in immediately available and freely transferable funds. All
payments on or in respect of this Note or the indebtedness evidenced hereby
shall be made without set-off or counterclaim and free and clear of and without
any deductions, withholdings, restrictions or conditions of any nature.
This Note is made and delivered by the Borrowers to the Bank
pursuant to the Revolving Credit and Security Agreement, dated as of April 28,
2000, among the Borrowers, the Bank, as agent and the lenders thereto and is
entitled to the benefits of said Revolving Credit and Security Agreement
(hereinafter, as originally
executed, and as now or hereafter amended, modified, varied, supplemented or
amended and restated called the "Credit Agreement"). This Note evidences the
obligation of the Borrowers (a) to repay the principal amount of the Advances
made by the Bank to the Borrowers pursuant to the Credit Agreement; (b) to pay
interest as herein and therein provided, on the principal amount hereof
remaining unpaid from time to time; and (c) to pay other amounts which may
become due and payable hereunder or thereunder as herein and therein provided.
The Borrowers will have the right to prepay the unpaid principal of
this Note in full or in part upon the terms contained in the Credit Agreement or
any other agreement between the Bank and the Borrower. The Borrowers will have
an obligation to prepay principal of this Note from time to time if and to the
extent required under, and upon the terms contained in, the Credit Agreement.
Any partial payment of the indebtedness evidenced by this Note shall be applied
in accordance with the terms of the Credit Agreement.
Pursuant to and upon the terms contained in the Credit Agreement,
the entire unpaid principal of this Note, all of the interest accrued on the
unpaid principal of this Note and all (if any) other amounts payable on or in
respect of this Note or the indebtedness evidenced hereby may be declared to be
immediately due and payable, whereupon the entire unpaid principal of this Note,
all of the interest accrued on the unpaid principal of this Note and all (if
any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby shall (if not already due and payable) forthwith become and be
due and payable to the Bank without presentment, demand, protest or any other
formalities of any kind, all of which are hereby expressly and irrevocably
waived by the Borrowers, excepting only for notice expressly provided for in the
Credit Agreement.
All computations of interest payable as provided in this Note shall
be made by the Bank on the basis of the actual number of days elapsed and a 360
day year. The interest rate in effect from time to time shall be determined in
accordance with the terms of the Credit Agreement.
Should all or any part of the indebtedness represented by this Note
be collected by action at law, or in bankruptcy, insolvency, receivership or
other court proceedings, or should this Note be placed in the hands of attorneys
for collection after default, the Borrowers hereby promises to pay to the holder
of this Note, upon demand by the holder hereof at any time, in addition to
principal, interest and all (if any) other amounts payable on or in respect of
this Note or the indebtedness evidenced hereby, all court costs and reasonable
attorneys' fees and all other collection charges and expenses reasonably
incurred or sustained by the holder of this Note.
The Borrowers hereby irrevocably waive notice of acceptance,
presentment, notice of nonpayment, protest, notice of protest, suit and all
other conditions precedent in connection with the delivery, acceptance,
collection and/or enforcement of this Note, except for notices expressly
provided for in the Credit Agreement. The Borrowers hereby absolutely and
irrevocably consent and submit to the jurisdiction of the courts of the State of
New York and of any federal court located in the County of New York, State of
New York in connection with any actions or proceedings brought against the
Borrowers by the holder hereof arising out of or relating to this Note.
This Note is intended to take effect as a sealed instrument. This
Note and the obligations of the Borrowers hereunder shall be governed by and
interpreted and determined in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, this REVOLVING CREDIT NOTE has been duly
executed by the undersigned on the day and in the year first above written.
ROBOTIC VISION SYSTEMS, INC.
By:
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Name: Xxx X. Xxxxx
Title: President
SCHEDULE TO REVOLVING CREDIT NOTE
AMOUNT AMOUNT NOTATION
DATE OF LOAN PAID MADE BY
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