Promissory Note - Vastera Inc. and PNC Bank NA
AMENDED AND RESTATED
PROMISSORY NOTE
$5,500,000 SEPTEMBER 15, 1999
FOR VALUE RECEIVED, VASTERA, INC., a Delaware corporation (the
"BORROWER"), promises to pay to the order of PNC BANK, NATIONAL ASSOCIATION (the
"BANK"), in lawful money of the United States of America in immediately
available funds, the principal sum equal to the lesser of FIVE MILLION FIVE
HUNDRED THOUSAND DOLLARS ($5,500,000) (the "FACILITY") and the aggregate unpaid
principal amount outstanding as of the Revolving Credit Expiration Date and the
Equipment Line Maturity Date, as applicable (as each is defined herein),
together with interest accruing on the outstanding principal balance from the
date hereof, as provided below:
1. LOAN AGREEMENT. This Note is issued in connection with the Loan
Agreement dated March 5, 1999 between the Borrower and the Bank, as amended by
Amendment No. 1 to Loan Agreement, dated the date hereof, the terms of which are
incorporated herein by reference (as amended, the "LOAN AGREEMENT"), and is
secured by the property described in the other loan documents entered into in
connection with the Loan Agreement (THE "LOAN DOCUMENTS") and by such other
collateral as previously may have been or may in the future be granted to the
Bank to secure this Note. All initially capitalized terms not otherwise defined
herein shall have the same meanings ascribed to such terms in the Loan
Agreement.
2. RATES OF INTEREST. Amounts outstanding under this Note will bear
interest at a rate per annum determined in accordance with the Loan Agreement.
Interest will be calculated on the basis of a year of 360 days for the actual
number of days in each interest period.
3. ADVANCES/EXPIRATION DATES. The Borrower may borrow, repay and
reborrow up to a maximum of $2,500,000 hereunder pursuant to the Revolving
Credit (as defined in the Loan Agreement) until the Revolving Credit Expiration
Date and may borrow up to a maximum of $3,000,000 hereunder pursuant to the
Equipment Line, in each case subject to the terms and conditions of this Note
and the Loan Documents. The Borrower shall be limited to a maximum of four (4)
quarterly advances (each an "EQUIPMENT ADVANCE") under the Equipment Line within
the twelve (12) month period immediately following the date of this Note, which
Equipment Advances must be requested and made in accordance with the Loan
Documents. The "REVOLVING CREDIT EXPIRATION DATE" shall mean September 5, 2000,
or such later date as may be designated by the Bank by written notice from the
Bank to the Borrower. The "EQUIPMENT LINE EXPIRATION DATE" shall mean September
___, 2000. The Revolving Credit Expiration Date and the Equipment Line
Expiration Date are referred to herein collectively as the "EXPIRATION DATES."
The Borrower acknowledges and agrees that in no event will the Bank be under any
obligation to extend or renew the Facility or this Note beyond the initial
Expiration Dates. In no event shall the aggregate unpaid principal amount of
advances under this Note exceed the face amount of this Note.
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4. PAYMENT TERMS.
(a) REVOLVING CREDIT. Accrued interest will be due and payable on the
15th day of each month. The outstanding principal balance and any accrued but
unpaid interest shall be due and payable on the Revolving Credit Expiration
Date.
(b) EQUIPMENT LINE. Interest on the aggregate outstanding principal
balance of each Equipment Advance shall accrue beginning on the date that each
such Equipment Advance is made. Such accrued interest will be due and payable on
the 15th day of each month, beginning on the 15th day of the first calendar
month following the month of the first Equipment Advance. The outstanding
obligations of the Borrower with respect to all Equipment Advances made by the
Bank prior to March 5, 2000 (the "FIRST EQUIPMENT LINE LOAN CONVERSION DATE")
shall be converted to a term loan (the "FIRST EQUIPMENT LINE LOAN") on the First
Equipment Line Loan Conversion Date. Any and all accrued but unpaid interest on
Equipment Advances as of the First Equipment Line Loan Conversion Date shall be
due and payable in full on such First Equipment Line Loan Conversion Date. The
Borrower shall make thirty (30) equal, monthly payments of principal and
interest under the First Equipment Line Loan beginning with the payment due on
March 15, 2000 and continuing on the 15th day of each calendar month thereafter
through and including August 15, 2002. Interest on the aggregate principal
balance of each Equipment Advance made after the First Equipment Line Loan
Conversion Date (each a "SECOND TRANCHE EQUIPMENT ADVANCE") shall accrue
beginning on the date that each such Second Tranche Equipment Advance is made.
Such accrued interest will be due and payable on the 15th day each month,
beginning on the 15th day of the first calendar month following the month of the
first Second Tranche Equipment Advance. The obligations of the Borrower with
respect to all Second Tranche Equipment Advances shall be converted to a second
term loan (the "SECOND EQUIPMENT LINE LOAN") on the Equipment Line Expiration
Date. Any and all accrued but unpaid interest as of the Equipment Line
Expiration Date on Second Tranche Equipment Advances shall be due and payable in
full on such Equipment Line Expiration Date. The Borrower shall make thirty (30)
equal, monthly payments of principal and interest under the Second Equipment
Line Loan beginning with the payment due on September 15, 2000 and continuing on
the 15th day of each calendar month thereafter through and including February
15, 2003. The outstanding principal balance hereunder and any accrued but unpaid
interest shall be due and payable on February 15, 2003 (the "EQUIPMENT LINE
MATURITY DATE"). If any payment under this Note shall become due on a Saturday,
Sunday or public holiday under the laws of the State where the Bank's principal
office is located, such payment shall be made on the next succeeding business
day and such extension of time shall be included in computing interest in
connection with such payment. The Borrower hereby authorizes the Bank to charge
the Borrower's deposit account at the Bank for any payment when due hereunder.
Payments received will be applied to charges, fees and expenses (including
reasonable attorney's fees), accrued interest and principal in any order the
Bank may choose, in its sole discretion.
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If any payment under this Note shall become due on a Saturday, Sunday
or public holiday under the laws of the State where the Bank's principal office
is located, such payment shall be made on the next succeeding business day and
such extension of time shall be included in computing interest in connection
with such payment. The Borrower hereby authorizes the Bank to charge the
Borrower's deposit accounts at the Bank for any payment when due hereunder.
Payments received will be applied first to accrued interest, then principal,
then to charges, fees and expenses (including reasonable attorney's fees) in any
order the Bank may choose, in its sole discretion.
5. LATE PAYMENTS; DEFAULT RATE. If the Borrower fails to make any
payment of principal when due or any payment of interest or other amount coming
due pursuant to the provisions of this Note within ten (10) business days of the
date due and payable, the Borrower also shall pay to the Bank a late charge
equal to the lesser of five percent (5%) of the amount of such payment or $500.
Such ten (10) day period shall not be construed in any way to extend the due
date of any such payment. The late charge is imposed for the purpose of
defraying the Bank's expenses incident to the handling of delinquent payments
and is in addition to, and not in lieu of, the exercise by the Bank of any
rights and remedies hereunder, under the other Loan Documents or under
applicable law, and any fees and expenses of any agents or attorneys which the
Bank may employ. Upon maturity, whether by acceleration, demand or otherwise,
and at the option of the Bank upon the occurrence of any Event of Default (as
defined in the Loan Agreement) and during the continuance thereof, this Note
shall bear interest at a rate per annum (based on a year of 360 days and actual
days elapsed) which shall be three percentage points (3%) in excess of the
interest rate in effect from time to time under this Note but not more than the
maximum rate allowed by law (the "DEFAULT RATE"). The Default Rate shall
continue to apply whether or not judgment shall be entered on this Note.
6. PREPAYMENT. The indebtedness evidenced by this Note may be
prepaid in whole or in part at any time without penalty.
7. REPLACEMENT OF ORIGINAL NOTE. This Amended and Restated
Promissory Note is issued in replacement for that certain Promissory Note issued
by the Borrower dated March 5, 1999 payable to the Bank, in the face amount of
$4,000,000 (the "ORIGINAL NOTE"). The indebtedness of the Borrower to the Bank
evidenced by the Original Note is continuing indebtedness and nothing herein
shall be deemed to constitute a payment, settlement or novation of the Original
Note or as a release or to otherwise adversely affect any rights of Bank against
the Borrower. All amounts outstanding under the Original Note shall be
transferred to, and be deemed to be outstanding under, this Amended and Restated
Promissory Note.
8. MISCELLANEOUS. No delay or omission of the Bank to exercise any
right or power arising hereunder shall impair any such right or power to be
considered to be a waiver of any such right or power, nor shall the Bank's
action or inaction impair any such right or power. The Borrower agrees to pay on
demand, to the extent permitted by law, all reasonable costs and expenses
incurred by the Bank in the enforcement of its rights in this Note and in any
security therefor, including without limitation reasonable fees and expenses of
the Hank's counsel. If any provision of this Note is found to be invalid by a
court, all the other provisions of this Note will remain in full force and
effect. The Borrower and all other makers and indorsers of this Note hereby
forever waive presentment, protest, notice of dishonor and notice of
non-payment. The
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Borrower also waives all defenses based on suretyship or impairment of
collateral. This Note shall bind the Borrower and its heirs, executors,
administrators, successors and assigns, and the benefits hereof shad inure to
the benefit of the Hank and its successors and assigns.
THIS NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
BANK AND THE BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH
OF PENNSYLVANIA. The Borrower hereby irrevocably consents to the non-exclusive
jurisdiction of any state or federal court for Allegheny County, Pennsylvania or
the Western District of Pennsylvania, and consents that all service of process
be sent by nationally recognized overnight courier service directed to the
Borrower at the Borrower's address set forth in the Loan Agreement and service
so made will be deemed to be completed when received by the Borrower; provided
that nothing contained in this Note will prevent the Bank from bringing any
action, enforcing any award or judgment or exercising any rights against the
Borrower, against any security or against any property of the Borrower within
any other county, state or other foreign or domestic jurisdiction. The Borrower
acknowledges and agrees that the venue provided above is the most convenient
forum for both the Bank and the Borrower. The Borrower waives any objection to
venue and any objection based on a more convenient forum in any action
instituted under this Note.
9. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL
RIGHT THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATION TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION
WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED TN ANY OF SUCH DOCUMENTS. THE
BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all of the
provisions of this Note, including waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
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WITNESS the due execution hereof as a document under seal, as of the
date first written above, with the intent to be legally bound hereby.
VASTERA, INC.
By: /s/ Philip J. Balsamo
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Print Name: Philip J. Balsamo
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Title: CFO
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