EXHIBIT 10.1
REVOLVING LOAN NOTE
$25,000,000 May 4, 2001
FOR VALUE RECEIVED, the undersigned, The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Family Trust
No. 2 ("Maker"), promises to pay, on demand, subject to sixty days notice unless
there shall have occurred an "Event of Default" as defined below and as a result
this Note shall have at once become due and payable (the "Maturity Date"), to
the order of EMS Financial, Inc. a New Jersey corporation ("Payee") or any
subsequent holder, at its offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, or such other place designated by holder in writing, the principal sum
of TWENTY-FIVE MILLION DOLLARS ($25,000,000), or such lesser amount as shall
equal the aggregate principal amount of all revolving loans made to Maker by
Payee hereunder (the "Revolving Loans"), together with interest from the date
hereof on the unpaid balance of this Note as it may exist from time to time at
the rate (herein called the "Applicable Rate") equal to prime, determined at the
beginning of each calendar quarter, and in no event shall the Applicable Rate
exceed the maximum interest rate permitted to be charged from time to time under
applicable law (herein called the "Maximum Rate"). The Applicable Rate shall be
determined based upon the published prime rate. Accrued interest on this Note
shall be computed daily on the basis of a 365-day/366 day year, as applicable,
applied to the unpaid principal balance at the close of business each day and
the aggregate of such daily amounts of accrued interest shall be payable
quarterly on the first business day following the end of each calendar quarter.
Notwithstanding the foregoing, if at any time the Applicable Rate exceeds the
Maximum Rate, the rate of interest payable under this Note shall be limited to
the Maximum Rate as provided above.
Subject to the terms and conditions set forth in this Note, Payee shall
make Revolving Loans to Maker at any time and from time to time from the date of
this Note until the Maturity Date, in an aggregate principal amount not to
exceed at any one time $25,000,000 (the "Maximum Revolving Loan Amount") at such
time. Revolving Loans made under this Note shall be in an integral multiple of
$200,000 and shall be wired by Payee to the account of Maker requested by Maker
prior to 3:00 p.m., New York time, on the borrowing date proposed by Maker.
Maker shall give Payee irrevocable written notice of all proposed Revolving
Loans not later than three business days prior to the proposed borrowing (a
"Borrowing Notice"). Such Borrowing Notice shall specify the aggregate principal
amount of the Revolving Loan that Maker is requesting Payee to make and the
requested effective date of the proposed Revolving Loan. Each Revolving Loan
shall bear interest on the outstanding principal balance thereof from the date
such Revolving Loan is made at the Applicable Rate. Proceeds of each Revolving
Loan shall be used for the general purposes of the Maker including to refinance
existing obligations of the Maker.
Payee shall, and is hereby authorized by Maker to, endorse on the
schedule attached hereto an appropriate notation evidencing the date and amount
of each Revolving Loan from Payee and the date and amount of each payment and
prepayment with respect thereto; provided that the failure of the Payee to make
such a notation on this Note or any error in such notation shall not affect the
obligations of Maker under this Note.
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Maker shall pay Payee on the last day of each quarter end, in
immediately available funds, a revolving loan commitment fee (the "Fee") equal
to 1/2 of 1% per annum on the average unused amount of the Maximum Revolving
Loan Amount for each quarter. Such Fee shall be computed on the basis of the
actual number of days elapsed during the calendar quarter on the basis of a 365
or 366 day year, as applicable. Such Fee shall commence on the date of this Note
and cease to accrue on the earlier of the Maturity Date or any termination of
Payee's commitment to make Revolving Loans.
Maker shall have the right at any time, in its sole discretion and upon
not less than 10 days written notice to Payee, to permanently reduce or
terminate the Maximum Revolving Loan Amount, provided, however, that each
partial reduction thereof shall be in an integral multiple of $200,000. Any
reduction of the Maximum Revolving Loan Amount shall be accompanied by payment
in full of any principal over the reduced Maximum Revolving Loan Amount plus
accrued interest thereon and accrued Fee computed as provided in the previous
paragraph.
Payee shall have the right at any time, in its sole discretion and upon
not less than 60 days written notice to Maker (unless there shall have occurred
and be continuing an Event of Default), to permanently reduce or terminate the
Maximum Revolving Loan Amount, provided, however, that each partial reduction
thereof shall be in an integral multiple of $200,000. Any reduction of the
Maximum Revolving Loan Amount shall require Maker to remit payment in full of
any principal over the reduced Maximum Revolving Loan Amount plus accrued
interest and accrued Fee computed as provided in the paragraph above upon the
expiration of such 60 day notice period.
The principal balance of this Note may be prepaid and discharged in
whole or in part by Maker at any time and from time to time, without premium,
penalty or fee. Any such prepayment may be subsequently reborrowed.
The Maker, signers, sureties, guarantors and endorsers of this Note,
jointly and severally, except as otherwise expressly set forth herein, waive
demand, presentment, notice of nonpayment or dishonor, diligence in collecting,
grace, notice of any protest, and consent to all extensions for any periods of
time and partial payments, before or after maturity.
If this Note is not paid at maturity, howsoever such maturity may be
brought about, and the same is placed in the hands of an attorney for
collection, or if this Note is collected by suit or through bankruptcy, probate
or other legal proceedings, Maker agrees to pay holder's costs of collection,
when incurred, including reasonable attorney's fees.
No delay in the payments to holder or in the exercise of any power or
right under this Note, or under any instrument securing payment hereof or
executed in connection herewith, shall operate as a waiver thereof, nor shall a
single or partial exercise of any power or right preclude other or further
exercise thereof or exercise of any other power or right.
Payment of the indebtedness evidenced by this Note is secured by the
security interests established by the following documents (the "Security
Documents"), to wit:
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A Security Agreement dated as of May 4, 2001 executed by the
Maker and Payee covering certain securities owned by Maker.
The term default shall include any or all of the following:
(a) The assignment or voluntary or involuntary conveyance by
Maker of legal or beneficial interest, or Maker's mortgage, pledge or
grant of a security interest in any of the Collateral (as defined in the
Security Agreement); or
(b) The filing or issuance of a notice of any lien, warrant for
distraint or notice of levy for taxes or assessment against the
Collateral (except for those liens not securing indebtedness for
borrowed money which are being contested in good faith and for which
adequate reserves have been created); or
(c) Maker's nonpayment of any installment of principal, interest
or the Fee under this Note; or
(d) The adjudication of Maker as bankrupt, or the taking of any
voluntary action by Maker or any involuntary action against Maker
seeking an adjudication of Maker as bankrupt, or seeking relief by or
against Maker under any provision of the United States Bankruptcy Code;
(e) The failure by Maker to comply with any other covenant in
this Note or in the Security Documents;
(f) Maker's default in any payment (regardless of amount) of
principal or interest on any other indebtedness for borrowed money; or
(g) Maker's default in the observance or performance of any other
agreement or condition relating to any such other indebtedness for
borrowed money or contained in any instrument evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder of the indebtedness to cause, such other indebtedness
for borrowed money to become due prior to its stated maturity.
An "Event of Default" shall be deemed to have occurred immediately upon
any default described in clause (d) or (g) above, if any default described in
clauses (c) or (f) above is not cured within 5 days, and if any default
described in clauses (a), (b), or (e) is not cured within 30 days after written
notice from Payee to Maker.
If an Event of Default relating to a default described in clause (d)
above shall occur, the entire principal balance and accrued interest owing
thereon shall automatically become due and payable, without presentment, demand,
protest or notice of any kind, all of which are expressly waived by Maker, and
the commitment to make Revolving Loans shall automatically be terminated. If any
other Event of Default has occurred and is continuing, the entire principal
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balance and accrued interest owing hereof shall at once become due and payable
and the commitment to make Revolving Loans shall be terminated without notice,
at the option of the Payee, and the property covered by the Security Documents
shall be subject to foreclosure under applicable law. Failure to exercise this
option shall not constitute a waiver of the right to exercise the same in the
event of any subsequent default. In the event any payment, including interest or
principal, required to be made under this Note is not made when due, interest on
the overdue sum shall accrue at the Applicable Rate plus four percent.
So long as the Note shall remain unpaid, the Maker shall furnish to the
Payee:
(a) as soon as available and in any event not later than 75 days
after the end of each of the first three quarters of each fiscal
year of the Maker, the unaudited balance sheet of the Maker as of
the end of such quarter and the unaudited statements of income
and cash flows of the Maker for the period commencing at the end
of the previous year and ending with the end of such quarter, all
in reasonable detail and duly certified with respect to such
statements (subject to year-end adjustments) by the Trustee of
the Maker as being complete and accurate in all material
respects;
(b) as soon as available and in any event not later than 75 days
after the end of each of the first three quarters of each fiscal
year of Contran Corporation, the unaudited consolidated balance
sheet of Contran Corporation as of the end of such quarter and
the unaudited consolidated statements of income and cash flows of
Contran Corporation for the period commencing at the end of the
previous year and ending with the end of such quarter, all in
reasonable detail and duly certified with respect to such
unaudited consolidated statements (subject to year-end
adjustments) by an officer of Contran Corporation as being
complete and accurate in all material respects;
(c) as soon as available and in any event not later than 120 days
after the end of each fiscal year of the Maker, a copy of the
unaudited balance sheet of the Maker as of the end of such fiscal
year and unaudited statement of income and of cash flows of the
Maker for such fiscal year, all in reasonable detail and duly
certified with respect to such statements by the Trustee of Maker
as being complete and accurate in all material respects;
(d) as soon as available and in any event not later than 120 days
after the end of each fiscal year of Contran Corporation, a copy
of the annual audit report for such year, including therein
consolidated balance sheets of Contran Corporation as of the end
of such fiscal year and consolidated statements of income and
retained earnings and of cash flows of the Contran Corporation
for such fiscal year, in each case with unqualified certification
by PricewaterhouseCoopers LLP or other independent certified
public accountants of national recognized standing reasonably
acceptable to Payee.
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This Note shall be construed in accordance with the laws of the State of
New Jersey and the laws of the United States applicable to transactions in New
Jersey.
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IN WITNESS WHEREOF, the undersigned Maker has executed this Note as of
the day of May 4, 2001.
The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Family Trust No. 2
By: /s/▇. ▇▇▇▇▇▇▇
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▇. ▇▇▇▇▇▇▇
Its: Trustee
Acknowledged and agreed to by the undersigned solely with respect to its
obligations in the second and third paragraph of this Note:
EMS Financial, Inc.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Treasurer
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SCHEDULE OF REVOLVING LOANS
Type of Transaction
(Loan or Payment) Date Amount
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