Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - Arista Power, Inc. | f8k042610_windtamer.htm |
| EX-4.1 - REGISTRATION RIGHTS AGREEMENT - Arista Power, Inc. | f8k042610ex4i_windtamer.htm |
| EX-4.2 - FORM OF WARRANT TO PURCHASE COMMON STOCK - Arista Power, Inc. | f8k042610ex4ii_windtamer.htm |
| EX-10.1 - LOAN AGREEMENT - Arista Power, Inc. | f8k042610ex10i_windtamer.htm |
| EX-10.4 - ASSIGNMENT OF SHARES - Arista Power, Inc. | f8k042610ex10iv_windtamer.htm |
| EX-10.3 - WARRANT PURCHASE AGREEMENT - Arista Power, Inc. | f8k042610ex10iii_windtamer.htm |
Exhibit
10.2
COMMITTED
REVOLVING CREDIT NOTE
(VARIABLE
RATE)
| $1,000,000.00 | April 26, 2010 |
FOR VALUE RECEIVED, and
intending to be legally bound, WINDTAMER CORPORATION
(“Borrower”), a corporation organized under the laws of the State of New York,
with its principal place of business at 156 Court Street, Geneseo, New York
14454, promises to pay to FIRST
NIAGARA BANK, N.A., a national banking association with a banking office at
6950 South Transit Road, P.O. Box 28, Lockport, New York 14095-0028
(“Lender”) or order, on or before May 1, 2011 (“Maturity”), the lesser of the
principal sum of One Million and 00/100 Dollars ($1,000,000.00) or the aggregate
unpaid principal amount of all advances made by Lender to Borrower hereunder,
together with interest thereon until paid in full.
1. REVOLVING
CREDIT. Borrower may, at its option, borrow, pay, reborrow and
repay the principal of this Note at any time prior to Maturity or such earlier
date as the obligations of Borrower to Lender under this Note shall become due
and payable.
2. REQUEST FOR
LOANS. Advances made hereunder (each a “Loan”) are properly
requested orally or in writing not later than 4:00 p.m. on a Business Day on
which the Loan is to be made, unless otherwise provided herein. Each
request for a Loan shall constitute, both when made and when honored, a
representation and warranty by Borrower that Borrower is entitled to obtain such
Loan. The aggregate unpaid principal amount of Loans under this Note
shall not exceed the full amount of this Note. Lender may, in its
sole discretion, make an advance to Borrower upon oral request, provided,
however, Lender reserves the right to require that advance requests be in
writing. Each oral request shall be conclusively presumed to have
been made by a person authorized by Borrower to do so, and any credit by Lender
of a Loan to or for the account of Borrower shall conclusively establish
Borrower’s obligation to repay same. Lender shall incur no liability
of any kind to any party by reason of making an advance upon an oral
request.
3. INTEREST RATE. Each
Loan made hereunder shall bear interest on the unpaid principal balance at all
times at a per annum rate equal to the Prime Rate, as defined below, plus zero
percent (0%). Accrued interest shall be payable monthly in arrears on
the 1st day
of each month commencing May 1, 2010 until paid in
full.
INTEREST RATE. Each
Loan made hereunder shall bear interest on the unpaid principal balance at all
times at a per annum rate equal to the Prime Rate, as defined below, plus zero
percent (0%). Accrued interest shall be payable monthly in arrears on
the 1st day
of each month commencing May 1, 2010 until paid in full.
“Prime
Rate” means that variable rate of interest announced from time to time by Lender
as its prime rate for calculating interest on certain loans. The
Prime Rate may or may not be the most favorable charged by Lender to its
customers. The interest rate on this Note shall change simultaneously
with changes to the Prime Rate.
Notwithstanding
the foregoing, at no time prior to the Maturity will the rate at which interest
accrues be less than 3.25% per annum.
(a) Borrower
shall pay interest and fees, calculated on the basis of a 360-day year for the
actual number of days of each year (365 or 366, as applicable), on the
outstanding principal amount from and including the date of this Note to but not
including the date the outstanding principal amount is paid in
full.
(b) If
pursuant to the terms of this Note, Borrower is at any time obligated to pay
interest on the principal balance of this Note at a rate in excess of the
maximum interest rate permitted by applicable law, the applicable interest rate
shall be immediately reduced to such maximum rate and all previous payments in
excess of the maximum rate shall be deemed to have been payments in reduction of
principal and not on account of the interest due hereunder.
1
(c) After
the occurrence of an Event of Default, at Lender’s option, interest shall accrue
at a rate
per annum
equal to the aggregate of 6% plus the rate otherwise applicable (the “Default
Rate”), and such rate shall continue to apply whether or not judgment shall be
entered on this Note.
(d) If
any interest rate index is not available, a similar rate based upon a comparable
index selected by Lender in its sole discretion will be utilized.
4. REPAYMENT. At
Maturity or the earlier acceleration of this Note, Borrower shall pay the entire
principal balance, plus all accrued and unpaid interest and fees.
5. APPLICATION; BUSINESS
DAY. Borrower shall make all payments on this Note to Lender
at its address stated above, or at such other place as the holder of this Note
may designate. All payments shall be made absolutely net of, without
deduction or offset and free and clear of taxes, deductions, charges or
withholding of any kind. Lender shall apply all payments received on
this Note to any accrued and unpaid interest then due and owing, then to the
reduction of principal of this Note, then to other sums due hereunder in such
order and in such amounts as Lender may determine from time to
time. The sum or sums shown on Lender’s records shall be evidence of
the correct unpaid balances of principal and interest on this Note, absent
manifest error. If any payment comes due on a day that is not a
Business Day, as defined below, Borrower may make the payment on the first
Business Day following the payment date and pay the additional interest accrued
to the date of payment. “Business Day” means a day of the year on
which banks are not required or authorized by law to close in New York
State.
6. FEES.
(a) Late
Fee. If any payment due under this Note is unpaid for ten (10)
days or more, Borrower shall pay, in addition to any other sums due under this
Note (and without limiting Lender’s other remedies on account thereof), a late
charge in an amount equal to
6% of such unpaid
amount
.
(b) Commitment
Fee. On the date hereof, Borrower shall pay Lender a fee in
the amount of $5,000.00.
7. USE OF
PROCEEDS. Any Loan made by Lender to Borrower and evidenced by
this Note shall be used by Borrower for temporary working capital.
8. MAINTAIN OPERATING
ACCOUNTS. Borrower shall maintain with Lender, as its primary
financial institution, corporate deposit and operating accounts. At
the option of Lender, all interest payments, principal payments and fees will
automatically be deducted from Borrower’s primary operating
account.
9. SUBJECT TO LOAN
AGREEMENT. This Note is executed and delivered subject to the
terms of a Loan Agreement dated April 26, 2010 between Borrower and Lender (as
the same may be amended or supplemented from time to time, the “Loan Agreement”)
and reference is hereby made to the Loan Agreement for the provisions relating
to Lender’s rights of acceleration of the principal hereof upon the occurrence
of an Event of Default (as defined in the Loan Agreement) and Lender’s
remedies.
10. SETOFF. Without limiting
its rights of setoff under New York law generally, if the unpaid principal
amount of the Note, interest accrued on the unpaid principal amount thereof or
other amount owing by Borrower under this Note or the other loan documents shall
have become due and payable (at maturity, by acceleration or otherwise), Lender,
any assignee of Lender and the holder of any participation in any loans will
each have the right, in addition to all other rights and remedies available to
it, without notice to Borrower, to set-off against and to appropriate and apply
to such due and payable amounts any obligations owing to, and any other funds
held in any manner for the account of, Borrower by Lender or by such holder
including, without limitation, all funds in all deposit accounts (whether time
or demand, general or special, provisionally credited or finally credited, or
otherwise) now or in the future maintained by Borrower with Lender or such
holder. Borrower consents to and confirms the foregoing arrangements
and confirms Lender’s rights, such assignee’s rights and such holder’s rights of
banker’s lien and set-off. Nothing in this Note will be deemed a
waiver or prohibition of or restriction on Lender’s rights, such assignee’s
rights or any such holder’s rights of banker’s lien or set-off.
2
11. CAPITAL
REQUIREMENTS. If the adoption of, any change in or any change
in the interpretation of any law, regulation or guideline by any applicable
governmental authority, central bank or similar agency exercising control over
financial institutions (a “Governmental Rule”) or the compliance by Lender with
the Governmental Rule requires that any loan or commitment hereunder be included
for purposes of calculating the appropriate amount of capital to be maintained
by Lender or First Niagara Financial Group, Inc. (“FNFG”) and the result of
which is to reduce the rate of return on Lender’s capital then, and in each such
case, Lender will deliver to Borrower a statement of the justification therefor
and the amount necessary to compensate Lender or FNFG for such reduced rate of
return. Each determination by Lender shall be conclusive absent
obvious error and shall be payable by Borrower to Lender upon Lender’s
demand. In determining any such amount, Lender may use reasonable
averaging and attribution methods.
12. PAYMENT OF FEES AND
EXPENSES. Borrower agrees to pay, upon demand, costs of
collection of all amounts due under this Note, including, without limitation,
principal, interest and fees, or in connection with the enforcement of, or
realization on, any security for this Note, including, without limitation, to
the extent permitted by applicable law, reasonable attorneys’ fees and
expenses.
13. GOVERNING LAW. This
Note shall be governed by the internal laws of the State of New York, without
regard to principles of the conflict of laws.
14. GENERAL
PROVISIONS.
(a) Borrower
waives presentment, demand, notice, protest and all other demands and notices in
connection with delivery, acceptance, performance or enforcement of this
Note.
(b) This
Note, together with any related loan and security agreements, guaranties, and
documents ancillary thereto contains the entire agreement between Lender and
Borrower with respect to the Note, and supersedes every course of dealing, other
conduct, oral agreement and representation previously made by
Lender.
(c) Borrower
agrees that in any legal proceeding, a copy of this Note kept in Lender’s course
of business may be admitted into evidence as an original.
(d) This
Note is a binding obligation enforceable against Borrower and its permitted
successors and assigns and shall inure to the benefit of Lender and its
successors and assigns.
(e) If
a court deems any provision of this Note invalid, the remainder of the Note
shall remain in effect.
(f) If
there is more than one Borrower, each of them shall be jointly and severally
liable for all amounts and obligations which become due under this Note and the
term “Borrower” shall include each as well as all of them.
(g) If
payment of this Note is secured by collateral, the collateral is specified in
the collateral records of Lender.
(h) No
failure by the holder hereof to exercise, and no delay in exercising, any right
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by such holder of any right or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right or
remedy. The rights and remedies of the holder hereof as herein
specified are cumulative and not exclusive of any other rights or remedies which
such holder may otherwise have.
(i) All
notices, demands, or other communications hereunder must be in writing and will
be effective upon receipt when sent to the address set forth herein or such
other address as provided by such party.
3
15. JURISDICTION AND
VENUE. BORROWER KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY (A) CONSENTS IN EACH ACTION AND OTHER LEGAL PROCEEDING COMMENCED BY
LENDER AND ARISING OUT OF OR OTHERWISE RELATING TO THIS NOTE OR ANY COLLATERAL
RELATED HERETO TO THE NONEXCLUSIVE PERSONAL JURISDICTION OF ANY COURT THAT IS
EITHER A COURT OF RECORD OF THE STATE OF NEW YORK OR A COURT OF THE UNITED
STATES LOCATED IN THE STATE OF NEW YORK, (B) WAIVES EACH OBJECTION TO THE LAYING
OF VENUE OF ANY SUCH ACTION OR OTHER LEGAL PROCEEDING, (C) WAIVES PERSONAL
SERVICE OF PROCESS IN EACH SUCH ACTION AND OTHER LEGAL PROCEEDING, AND (D)
CONSENTS TO THE MAKING OF SERVICE OF PROCESS IN EACH SUCH ACTION AND OTHER LEGAL
PROCEEDING BY REGISTERED MAIL DIRECTED TO BORROWER AT THE LAST ADDRESS OF
BORROWER SHOWN IN THE RECORDS RELATING TO THIS NOTE MAINTAINED BY LENDER, WITH
SUCH SERVICE OF PROCESS TO BE DEEMED COMPLETED FIVE (5) DAYS AFTER THE MAILING
THEREOF.
16. WAIVER OF JURY
TRIAL. BORROWER KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVES EACH RIGHT BORROWER MAY HAVE TO A TRIAL BY JURY WITH RESPECT
TO, AND EACH RIGHT TO ASSERT ANY CLAIM FOR DAMAGES (INCLUDING, BUT NOT LIMITED
TO, PUNITIVE DAMAGES) IN ANY ACTION OR OTHER LEGAL PROCEEDING OF ANY NATURE,
RELATING TO (A) THIS NOTE, ANY RELATED LOAN DOCUMENT OR ANY COLLATERAL RELATED
HERETO, (B) ANY TRANSACTION CONTEMPLATED BY ANY SUCH DOCUMENTS OR (C) ANY
NEGOTIATION, PERFORMANCE OR ENFORCEMENT OF THIS NOTE, OR ANY COLLATERAL RELATED
HERETO. BORROWER CERTIFIES THAT NEITHER LENDER NOR ANY REPRESENTATIVE
OF LENDER HAS REPRESENTED TO BORROWER THAT LENDER WILL NOT SEEK TO ENFORCE THE
WAIVER MADE BY BORROWER IN THIS PARAGRAPH. BORROWER ACKNOWLEDGES THAT
IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL AS NECESSARY AND
APPROPRIATE.
|
WINDTAMER
CORPORATION
|
|||
|
|
By:
|
/s/ Willaim A. Schmitz | |
| Name: William A. Schmitz | |||
| Title: Chief Executive Officer | |||
Rev. 03/30/2010
Borrower’s signature must be
witnessed by an authorized representative of Lender or notarized prior to
returning to Lender:
Witnessed
By:
/s/
Sheila M. Studebaker
Print
Name: Sheila M. Studebaker
Print
Title: Vice President
First
Niagara Bank, N.A.
4
STATE
OF NEW
YORK )
) SS:
COUNTY
OF MONROE
)
On
the 26TH day of
April in the year 2010, before me, the undersigned, personally appeared William
A. Schmitz, known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
_ /s/ Katherine
H. Karl
Notary
Public
5