Exhibit 10.3
SECOND AMENDED, RESTATED AND SUBSTITUTED SECURED NOTE
U.S. $450,000.00 New York, New York
November 30, 2000
ON DEMAND, AND IF NO DEMAND MADE, ON OR BEFORE January 31, 2001
("Termination Date"), for value received, the undersigned, which term wherever
used herein shall mean all and each of the signers of this note, promises to pay
to the order of SUMMIT BUSINESS CAPITAL CORP., a New York corporation having its
principal place of business in New York, New York (the "Lender"), or order, the
principal sum of Four Hundred Fifty Thousand Dollars (U.S. $450,000.00), with
interest from the date hereof upon disbursed and unpaid principal balances from
time to time outstanding at a rate per annum which shall, from day to day, be
equal to two and three-quarters of one percent (2.75%) per annum for amounts
outstanding under this Note, plus the rate for commercial loans announced from
time to time in the United States as its prime rate ("Prime Rate") by Lender,
each change in the rate to be charged hereon to become effective, without notice
to the undersigned, on the effective date of each change in the Prime Rate, such
interest to be computed based on a 360 day year and payable months in arrears on
the 1st day of each month, commencing on the 1st day of December, 2000. The
Prime Rate is a reference rate and is not necessarily the lowest rate charged by
Lender for extensions of credit. The Bank's Prime Rate, as of the date hereof,
is nine and one half of one percent (9.50%) per annum.
This Note is secured by a certain Inventory And Accounts Receivable
Loan And Security Agreement dated February 28, 1997, as amended as of October
27, 1998, April 30, 1999 and as of the date hereof (as amended, the "Loan
Agreement"), and may now or hereafter be secured by other mortgages, trust
deeds, assignments, security agreements, or other instruments of pledge or
hypothecation.
The Termination Date may be extended pursuant to the provisions of the
Loan Agreement; and if so extended, such extended date shall thereupon
constitute the Termination Date.
This Note is payable at the offices of the Lender, at 525 North Tryon
Street, Suite 1600, Charlotte, North Carolina 28202, or at such other place as
the holder may designate in writing, in lawful money of the United States of
America, which shall be legal tender in payment of all debts and dues, public
and private, at the time of payment.
Upon demand of Lender, or if no demand, upon the Termination Date, or
at the option of the Lender, (a) if the undersigned shall fail to make payment
of any installment of interest, as above provided, or (b) upon any default in
the terms and provisions of any of the Loan Agreement, or any security
agreement, trust deed, mortgage, or other instrument of pledge or hypothecation
which now or hereafter secures the payment of the indebtedness evidenced hereby,
or (c) upon default in the prompt payment when due (whether by reason of demand,
acceleration, maturity or otherwise) of any other indebtednesses, liabilities,
or obligations of the undersigned to the Lender, whether now existing or
hereafter created or arising (or if there is any cure period applicable thereto,
upon the lapse of such cure period), the entire unpaid balance of the
indebtedness hereby evidenced, together with all interest then accrued, shall at
once become due and payable for all purposes.
If this Note is placed in the hands of an attorney for collection, by
suit or otherwise, or to protect the security for its payment, or to enforce its
collection, the undersigned will pay all costs of collection and litigation,
together with a reasonable attorney's fee.
The proceeds of the loan represented by this note may be paid to any
one or more of the undersigned.
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of any other right of such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. Every
one of the undersigned and every endorser or guarantor of this note regardless
of the time, order or place of signing waives presentment, demand, protest and
notices of every kind (including notice of dishonor) and agrees that this Note
may be extended, in whole or in part, without limit as to the number of such
extensions or the period or periods thereof, and without notice to them and
without affecting their liability hereon and each such party assents to any
other indulgences, to any substitutions, exchanges or releases of collateral,
and to the additions or releases of any other parties or persons primarily or
secondarily liable for the payment of the indebtedness hereby evidenced.
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All rights and obligations hereunder shall be governed and construed
according to the internal statutes and laws of the State of New York (without
regard to principles of conflicts of law), in which state it is delivered,
accepted and is payable.
THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ALL STATE AND FEDERAL COURTS SITTING IN NEW YORK
COUNTY, NEW YORK AND AGREES THAT ALL SUMMONS AND OTHER COURT PROCESS ISSUED BY
SAID COURTS MAY BE SERVED UPON THE UNDERSIGNED, WITHIN OR OUTSIDE SAID COURTS'
TERRITORIAL JURISDICTION, BY MAILING THE SAME, BY REGISTERED OR CERTIFIED MAIL,
OR BY PERSONAL SERVICE, TO THE UNDERSIGNED AT ITS ADDRESS SPECIFIED IN THE LOAN
AGREEMENT; PROVIDED THAT NOTHING CONTAINED HEREIN SHALL LIMIT LENDER(S) RIGHT TO
SUE THE UNDERSIGNED IN ANY OTHER COURT HAVING JURISDICTION OVER THE UNDERSIGNED
OR ITS ASSETS AND TO SERVE SUMMONS OR OTHER COURT PROCESS UPON THE UNDERSIGNED
IN ANY MANNER PERMITTED BY APPLICABLE LAWS.
It is the intention of the Lender and the undersigned to comply
strictly with all applicable usury laws; and, accordingly, in no event and upon
no contingency shall the holder hereof ever be entitled to receive, collect, or
apply as interest any interest, fees, charges or other payments equivalent to
interest, in excess of the maximum rate which the Lender may lawfully charge
under applicable statutes and laws from time to time in effect; and, in the
event that the holder hereof ever receives, collects, or applies as interest,
any such excess, such amount which, but for this provision, would be excessive
interest, shall be applied to the reduction of the principal amount of the
indebtedness evidenced hereby; and, if the principal amount of the indebtedness
evidenced hereby, and all lawful interest thereon, is paid in full, any
remaining excess shall forthwith be paid to the undersigned, or other party
lawfully entitled thereto. All interest paid or agreed to be paid by the
undersigned shall, to the maximum extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal, so that the interest hereon for such full
period shall not exceed the maximum amount permitted by applicable law. Any
provision hereof, or of any other agreement between the Lender and the
undersigned, that operates to bind, obligate or compel the undersigned to pay
interest in excess of such maximum lawful contract rate shall be construed to
require the payment of the maximum rate only. The provisions of this paragraph
shall be given precedence over any other provision contained herein or in any
other agreement between the Lender and the undersigned that is in conflict with
the provisions of this paragraph.
This Note is effective only upon delivery to and acceptance by the
Lender. The undersigned hereby waives notice of acceptance of this Note.
This Note shall be binding upon each of the undersigned and upon each
undersigneds' successors, assigns, heirs and legal representatives and shall
inure to the benefit of Lenders and its successors and assigns.
This Note is an amendment to, and is in substitution and replacement
of, that certain amended, restated and substituted promissory note dated as of
April 30, 1999 in the original principal amount of $1,250,000.00 executed by the
undersigned in favor of the Lender (the "Replaced Note"). This Note represents
the same indebtedness represented by the Replaced Note and is not intended to
constitute a novation in any manner whatsoever.
BORROWER:
NDC AUTOMATION, INC.
ATTEST:
By: /s/ Beverly C. Love By: /s/ Claude Imbleau
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Beverly C. Love Claude Imbleau
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(Print or type name) (Print or type name)
Title: Controller Title: Chief Operating Officer
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