EXHIBIT 10.25
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SOUTHTRUST LINE OF CREDIT NOTE
SOUTHTRUST BANK
ST CAP FUNDSSM
FOR VALUE RECEIVED, the undersigned, which shall include all signers of
this Line of Credit Note, jointly and severally, ("Borrower"), promises to pay
to the order of SOUTHTRUST BANK (the "Bank") at the office of the Bank in
Birmingham, Alabama, or at such other place as the holder of this note may from
time to time designate in writing, the principal sum of One Million Five Hundred
Thousand and No/100 Dollars ($1,500,000), or so much thereof as may have been
advanced to Borrower from time to time and not repaid by the Borrower pursuant
to the terms hereof, together with interest on the unpaid principal amount of
such advances at a per annum rate equal to a floating rate of fifty basis points
(0.50%) above the Base Rate of the Bank as in effect from time to a time so long
as the principal amount, or any part thereof, is outstanding. The principal
amount of such advances shall bear interest from the date of each such advance.
Interest provided for herein shall be due and payable monthly
commencing on the first day of November, 2000, and continuing on the same day of
each month thereafter through and until such time as there remains no unpaid
principal balance on the amounts advanced to the Borrower hereunder or under
that certain Loan Agreement between Borrower and Bank dated __________________,
2000 (the "Loan Agreement"). The applicable interest rate shall change from time
to time as and when the Base Rate of the Bank changes until the principal amount
is paid in full.
Principal and interest shall be payable in lawful money of the United
States of America. Interest on the principal amount shall be calculated on the
basis of a 360 day year by multiplying the principal amount by the per annum
rate set forth above, multiplying the product thereof by the actual number of
days elapsed, and dividing the product so obtained by 360. The term "Base Rate"
means the rate of interest designated by the Bank periodically as its Base Rate.
The Base Rate is not necessarily the lowest rate charged by the Bank. The Base
Rate on the date of this note is __________. Time is of the essence with respect
to the amounts due hereunder.
During the Commitment Period, (as defined in the Loan Agreement), the
Borrower may borrow, repay and reborrow the principal sum of this Note, all in
accordance with the terms of the Loan Agreement but only in such amounts and to
the extent therein provided. On November 1, 2001 or such earlier date as may be
provided in the Loan Agreement, (the "Maturity Date"), this note shall mature
and all principal, interest, and other fees and charges due with respect hereto,
if not previously paid, shall be immediately due and payable.
Borrower shall not have the right to prepay this Note except in the
manner and upon payment of the Termination Fees, if any, provided for in the
Loan Agreement.
This note is referred to in and is entitled to the benefits of the Loan
Agreement and is secured by the security set forth and/or referred to in said
Loan Agreement, including the Separate Agreements and the Loan Documents
referred to therein. Funds disbursed hereunder shall be disbursed in accordance
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with the Loan Agreement. This note is unconditionally guaranteed by Guaranty
Agreements executed by Harry D. Shields and John B. Gallaghar (the "Guarantors")
bearing even date herewith.
The principal sum evidenced by this Note, together with accrued but
unpaid interest, shall be due and payable on the Maturity Date, but in any event
at the option of Bank upon the occurrence of (1) any failure by Borrower to pay
as and when due any installment of principal or interest due hereunder; (2) any
default or Event of Default under the Loan Agreement or any other default or
failure by Borrower to observe any covenant, condition or agreement under the
terms of this Note, the Loan Agreement, any of the Loan Documents (as defined in
the Loan Agreement) or any other security documents heretofore or hereafter
executed by Borrower to secure this Note; (3) the expiration of the Commitment
Period (as defined in the Loan Agreement); (4) the filing by Borrower or any
Guarantor of a voluntary petition in bankruptcy, the adjudication of Borrower or
any Guarantor as a bankrupt or insolvent, the filing by Borrower or any
Guarantor of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or Borrower's or any Guarantor's seeking or consenting to or
acquiescence in the appointment of any trustee, receiver or liquidator or the
making of any general assignment for the benefit of creditors or its admission
in writing of its inability to pay its or his debts generally as they become
due; (5) the entry by a court of competent jurisdiction of an order, judgment,
or decree approving a petition filed against Borrower or any Guarantor seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future federal, state or
other statute, law or regulation relating to bankruptcy, insolvency, or other
relief for debtors, which order, judgment or decree remains unvacated and
unstayed for thirty (30) consecutive days from the date of entry thereof, or the
appointment of any trustee, receiver or liquidator of Borrower or any Guarantor
or of a substantial part of its or his property or of any or all of the rents,
revenues, issues, earnings, profits or income thereof; (6) the death of any
Guarantor; (7) the occurrence of any material adverse change in the financial
condition or prospects of Borrower or any Guarantor. If, at the time the
principal balance is declared to be immediately due and payable, the principal
balance hereof shall be subject to prepayment at the option of Borrower, there
shall be added to the principal balance then due an amount equal to the
Termination Payment (if any) which would then be payable in the event of a
voluntary prepayment.
Upon any default, Borrower agrees to pay interest to the Bank (or any
holder) at the annual rate of four percent (4%) in excess of the rate otherwise
herein provided, as said rate shall change from time to time, on the aggregate
indebtedness represented by this note, including interest earned to maturity,
from maturity, whether or not resulting from acceleration, until such aggregate
indebtedness is paid in full. The Bank (or any holder) shall be entitled to
recover all expenses of collecting this note, including, without limitation,
costs of court and reasonable and actual attorney's fees.
The acceptance by the Bank of any payment or payments due hereunder, or
any part of such payment, after any default shall not constitute a waiver of
such default by the Bank.
With respect to the amounts due under this note, the Borrower waives
the following:
(a) All rights of exemption of property from levy or sale under
execution or other process for the collection of debts under the Constitution or
laws of the United States or any state thereof;
(b) Demand, presentment, protest, notice of dishonor, notice of
non-payment, suit against any party, diligence in collection, and all other
requirements necessary to charge or hold the undersigned liable on any
obligations hereunder; and
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(c) Any further receipt for or acknowledgment of any collateral now or
hereafter deposited as security for the obligations hereunder. Regardless of any
provision contained in this Note or any of the Loan Documents, in no event shall
the aggregate of all amounts that are contracted for, charged or collected
pursuant to the terms of this Note or any of the Loan Documents, and that are
deemed interest under Applicable Law, exceed the Maximum Rate. No provision of
this Note or in any of the Loan Documents or the exercise by Bank of any right
hereunder or under any Loan Document or the prepayment by Borrower of any of the
Obligations or the occurrence of any contingency whatsoever, shall entitle Bank
to charge or receive, or to require Borrower to pay, interest or any amounts
deemed interest by Applicable Law (such amounts being referred to herein
collectively as "Interest") in excess of the Maximum Rate, and all provisions
hereof or in any Loan Document which may purport to require Borrower to pay
Interest exceeding the Maximum Rate shall be without binding force or effect to
the extent only of the excess of Interest over such Maximum Rate. Any Interest
charged or received in excess of the Maximum Rate ("Excess"), shall be
conclusively presumed to be the result of an accident and bona fide error, and
shall, to the extent received by Bank, at the option of Bank, either be applied
to reduce the principal amount of the Obligations or returned to Borrower. The
right to accelerate the maturity of any of the Obligations does not include the
right to accelerate unaccrued interest, and no such interest will be collected
by Bank. All monies paid to Bank hereunder or under any of the Loan Documents
shall be subject to any rebate of unearned interest as and to the extent
required by Applicable Law. By the execution of this Agreement, Borrower
covenants that (i) the credit or return of any Excess shall constitute the
acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or
pursue any other remedy, legal or equitable, against Bank, based in whole or in
part upon contracting for, charging or receiving any Interest in excess of the
Maximum Rate. For the purpose of determining whether or not any Excess has been
contracted for, charged or received by Bank, all interest at any time contracted
for, charged or received from Borrower in connection with this Agreement shall,
to the extent permitted by Applicable Law, be amortized, prorated, allocated and
spread in equal parts throughout the full term of the Obligations. Borrower and
Bank shall, to the maximum extent permitted under Applicable Law, (i)
characterize any non-principal payment as an expense, fee or premium rather than
as Interest and (ii) exclude voluntary prepayments and the effects thereof. The
provisions of this Section shall be deemed to be incorporated into each Loan
Document (whether or not any provision of this Section is referred to therein).
BORROWER AND BANK HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY ClAIM,
COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN
ANY WAY PERTAINING OR RELATING TO THIS NOTE, THE LOAN AGREEMENT, ANY LOAN
DOCUMENT, OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION WITH THIS NOTE OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR
RELATED TO OR INCIDENTAL TO ANY DEALINGS OF THE PARTIES HERETO WITH RESPECT TO
THIS NOTE, THE LOAN AGREEMENT, ANY LOAN DOCUMENT, OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR IN
CONNECTION WITH THE TRANSACTIONS RELATED THERETO OR CONTEMPLATED THEREBY OR THE
EXERCISE OF EITHER PARTY'S RIGHTS AND REMEDIES THEREUNDER, IN ALL OF THE
FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE. BORROWER AND BANK AGREE THAT EITHER OR BOTH OF
THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE
KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO
WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN THEM
SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING
WITHOUT A JURY.
The Bank shall not by any act, delay, omission, or otherwise be deemed
to have waived any of its rights or remedies, and no waiver of any kind shall be
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valid unless in writing and signed by the Bank. All rights and remedies of the
Bank under the terms of this note and under applicable statutes or rules of law
shall be cumulative and may be exercised successively or concurrently. The
Borrower agrees that there are no defenses, equities or set offs in respect to
the obligations set forth herein. The obligations of the Borrower hereunder
shall be binding upon and enforceable against the Borrower's successors and
assigns. The obligations of each person named as Borrower herein shall be joint
and several obligations of all such persons. This note shall be governed by, and
construed in accordance with, the laws of the State of Florida. Any provision in
this note which may be unenforceable or invalid under any law shall be
ineffective to the extent of such unenforceability or invalidity without
affecting the enforceability or validity of any other provision hereof. Any
notice required to be given shall be deemed given if mailed, postage prepaid, to
the Borrower at the address set forth in the Loan Agreement.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed by its duly authorized officer and its corporate seal affixed as of the
_______________ day of October, 2000.
Nor'easter Micro, Inc.,
a Nevada corporation
By:
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Its:
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ATTEST:
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Its:
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