EXHIBIT 10.3
[LOGO OF FINOVA]
SECURED REVOLVING CREDIT NOTE
$5,000,000 As Of 10/22, 1998
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FOR VALUE RECEIVED, the undersigned Cumetrix Data Systems Corp. (the
"Borrower"), a California corporation with its principal place of business at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, hereby promises to pay to FINOVA
CAPITAL CORPORATION ("Lender"), or order, at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the holder may
specify in writing, the principal sum of Five Million Dollars ($5,000,000), or
such lesser sum which represents the principal balance outstanding under the
Revolving Loans facility established pursuant to the provisions of that certain
Loan and Security Agreement dated of even date herewith, between Borrower and
Lender (the "Agreement"), plus interest in the manner and upon the terms and
conditions set forth below. This Secured Revolving Credit Note ("Note") is
made pursuant to the 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 Agreement. The actual amount due and owing
hereunder shall be evidenced by ▇▇▇▇▇▇'s records of receipts and disbursements
with respect to Revolving Loans, which records shall be conclusive evidence of
such amount due and owing absent manifest error.
1.0 Rate And Payment Of Interest.
The outstanding principal balance of this Note shall bear interest at
a per annum rate of Base Rate. Interest charges and all other fees and charges
herein shall be computed on the basis of a year of 360 days and actual number of
days elapsed and shall be payable to Lender in arrears on the first day of each
month hereafter at its address set forth above. Accrued but unpaid interest
under this Note shall be due and payable on the first day of each month,
commencing , 1998, and at maturity, on which date all interest remaining
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unpaid shall be due and payable.
2.0 Schedule of Principal Payments.
A final installment of all outstanding principal, accrued and unpaid
interest and all other sums payable pursuant to the Loan Documents on 10/22,
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2000 unless due earlier pursuant to the terms of the Loan Agreement.
3.0 Prepayment.
Prepayment may be made under this Note in whole or in part, subject
to the Prepayment Fee, as applicable, as set forth in the Agreement.
4.0 ▇▇▇▇▇▇'s Right Of Acceleration
If the Agreement is terminated for any reason whatsoever, or if there
shall occur an Event of Default or if this Note is not paid when due, the entire
remaining principal balance and all accrued and unpaid interest and other fees
and charges with respect to this Note shall, at Lender's option, become
immediately due and payable.
5.0 Holder's Rights Upon Default.
If any Event of Default occurs, then from the date such Event of Default
occurs until it is cured or waived in writing, in addition to any agreed upon
charges, the principal balance of this Note shall thereafter, at Lender's
option, bear interest at three percentage points (3.0%) per annum in excess of
the Base Rate, computed on the basis of a year of three hundred sixty (360)
days and the actual number of days elapsed.
6.0 Additional Rights of Holder.
If any installment of principal or interest hereunder is not paid when
due, the holder shall have, in addition to the rights set forth herein, in the
Agreement under law, the right to compound interest by adding the unpaid
interest to principal, with such amount thereafter bearing interest at the
rate provided in this Note.
7.0 General Provisions.
7.1 If this Note is not paid when due or upon the occurrence of any Event
of Default, the undersigned further promises to pay all costs of
collection, foreclosure fees, reasonable attorneys' fees and expert
witness fees incurred by the holder, whether or not suit is filed hereon,
and the fees, costs and expenses as provided in the Agreement.
7.2 The undersigned hereby consents to any and all renewals, replacements
and/or extensions of time for payment of this Note before, at or after
maturity.
7.3 The Undersigned hereby consents to the acceptance, release or
substitution of security for this Note.
7.4 Presentment for payment, notice of dishonor, protest and notice of
protest are hereby expressly waived.
7.5 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 to Loan Agreement, 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. ▇▇▇▇▇▇▇▇ 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, Anniversary
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
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(collectively, the Additional Sums), whether pursuant to this Note, the
Agreement or any other documents or instruments in any way pertaining to this
lending transaction, or otherwise 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 deemed to be, additional interest and for such purposes
only, the agreed upon and "contracted 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.
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 provision 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 contract rate permitted by the Applicable
Usury Law (the "Maximum Interest Rate"). In the event (a) any such excess of
interest otherwise would be contracted for, charged or received from Borrower or
otherwise in connection with the loan evidenced hereby, (b) the maturity of
indebtedness evidenced by this Note is accelerated in whole or in part, or (c)
all or part of the principal or interest of this Note shall be prepaid, so that
under any of such circumstances the amount of interest contracted for, shared or
received in connection with the loan evidenced hereby, would exceed the Maximum
Interest Rate, then in any such event (1) the provisions of this 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 Lender'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 Lender from time to
time, if and when the effective interest rate on the loan otherwise falls below
the Maximum Interest Rate, to the extent that interest paid to the date of
calculation does not exceed 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, if applicable, shall
apply to all indebtedness evidenced hereby regardless of when incurred; but,
again to the extent not prohibited by the Applicable Usury Law, such decreases
shall not apply to the indebtedness evidenced hereby regardless of when
incurred.
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7.6 No delay or omission on the part of the holder of this Note in
exercising any right shall operate as a waiver thereof or of
any other right.
7.7 No waiver by the holder of this Note upon any one occasion shall
be effective unless in writing nor shall it be construed as a bar or
waiver of any right or remedy on any future occasion.
7.8 Time is of the essence for the performance by the undersigned of
the obligations set forth in this Note.
7.9 Should any one or more of the provisions of this Note be determined
illegal or unenforceable, all other provisions shall nevertheless remain
effective.
7.10 This Note cannot be changed, modified, amended or terminated
orally.
7.11 This Note shall be governed by, construed and enforced in
accordance with the laws of the State of Arizona, without reference to
the principles of conflicts of laws thereof.
7.12 THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR RELATED TO THIS
NOTE AND ACKNOWLEDGES THAT ▇▇▇▇▇▇ ALSO WAIVES SUCH RIGHT.
8.0 Security For This Note.
This Note is secured pursuant to the Agreement and is subject to all of
the terms and conditions thereof, including, but not limited to, the remedies
specified therein.
IN WITNESS WHEREOF, this Secured Revolving Credit Note has been executed
and delivered as of the date first set forth above.
CUMETRIX DATA SYSTEMS CORP.
BY: /s/ ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇▇▇
President
Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
(CORPORATE SEAL)
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