Exhibit
10.6
MASTER REVOLVING
PROMISSORY NOTE
$4,000,000.00
August 21
, 2009
1.
Definitions
. As used
in this Master Revolving Promissory Note, the following terms shall
have the following meanings.
“
Borrower ” means, whether one or more, COSTAR
VIDEO SYSTEMS, LLC, a Delaware limited liability
company.
“ Business
Day ” means a weekday, Monday through
Friday, except a legal holiday or a day on which banking
institutions in Dallas, Texas are authorized or required by law to
be closed. Unless otherwise provided, the term “days”
when used herein shall mean calendar days.
“ Credit
Agreement ” means the Revolving Credit and
Security Agreement dated as of the date hereof, between Lender and
Borrower as such may be amended, renewed, extended and replaced
from time to time.
“ Effective
Date ” means August 21 ,
2009.
“ Funding
Indemnification ” means the amount (which shall be
payable on Lender’s written demand notwithstanding any
contrary provision in this Note) necessary to promptly compensate
Lender for, and hold it harmless from, any loss, cost or expense
incurred by it as a result of:
(a)
any payment or
prepayment of any Portion bearing interest based upon LIBOR on a
day other than the last day of the relevant LIBOR Interest Period
(whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b)
any failure by Borrower
to prepay, borrow, continue or convert a Portion bearing or
selected to bear interest based upon LIBOR on the date or in the
amount selected by Borrower, including any loss of anticipated
profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such portion or
from fees payable to terminate the deposits from which such funds
were obtained. Borrower also shall pay any customary administrative
fees charged by Lender in connection with the foregoing. For
purposes of calculation amounts payable by Borrower to Lender
hereunder, Lender shall be deemed to have funded the Portion based
upon LIBOR by a matching deposit or other borrowing in the London
interbank market for a comparable amount and for a comparable
period, whether or not such Portion was in fact so
funded.
“
Lender ” means COMPASS BANK and its
successors and assigns.
“ LIBOR
” means, with respect to each LIBOR
Interest Period, the rate (expressed as a percentage per annum and
adjusted as described in the last sentence of this definition of
LIBOR) for deposits in United States Dollars that appears on
Reuter’s Monitor Money Rates Service (or the successor
thereto) as of 11:00 a.m., London, England time, on the related
LIBOR Determination Date. If such rate does not appear on such
screen or service, or such screen or service shall cease to be
available, LIBOR shall be determined by Lender to be the offered
rate on such other screen or service that displays an average
British Bankers Association Interest Settlement Rate for deposits
in United States Dollars (for delivery on the first day of such
LIBOR Interest Period) for a term equivalent to such LIBOR Interest
Period as of II :00 a.m. on the relevant LIBOR Determination Date.
If the rates referenced in the two preceding sentences are not
available, LIBOR for the relevant LIBOR Interest Period will be
determined by an alternate method reasonably selected by Lender.
LIBOR shall be adjusted from time to time in Lender’s sole
discretion for then-applicable reserve requirements, deposit
insurance assessment rates, marginal emergency, supplemental,
special and other reserve percentages, and other regulatory
costs.
MASTER REVOLVING
PROMISSORY NOTE – Page 1
“ LIBOR
Banking Day ” means any day on which commercial banks
in the City of London, England are open for business and dealing in
offshore dollars.
“ LIBOR
Determination Date ” means a day that is two (2)
LIBOR Banking Days prior to the beginning of the relevant LIBOR
Interest Period.
“ LIBOR
Interest Period ” means a period of one (1) month.
The first day of the interest period must be a LIBOR Banking Day.
The last day of the interest period and the actual number of days
during the interest period will be determined by Lender using the
practices of the London interbank market.
“ Loan
” means the up to $4,000,000.00 loan
to be made to Borrower evidenced by this Note.
“ LIBOR
Payment Date ” means the last day of each LIBOR
Interest Period.
“ Loan
Documents ” means this Note, the Credit Agreement and
any and alt other agreements, documents, and instruments executed
and delivered in connection with this Note, and any future
amendments thereto, or restatements thereof, together with any and
all renewals, extensions, amendments and modifications to any such
agreements, documents, and instruments.
“ Loan
Rate ” means LIBOR, as of the applicable LIBOR
Determination Date, plus 3.0% (300 basis points); provided,
however, notwithstanding the amount of LIBOR, the Loan Rate shall
never be lower than five percent (5.0%) per annum, nor higher than
the Maximum Lawful Rate.
“ Maturity
Date ” means August 21, 2010, being the date this
Note becomes due and payable in its entirety.
“ Maximum
Lawful Rate ” means the maximum lawful rate of
interest which may be contracted for, charged, taken, received or
reserved by Lender in accordance with the applicable laws of the
State of Texas (or applicable United States federal law to the
extent that such law permits Lender to contract for, charge, take,
receive or reserve a greater amount of interest than under Texas
law).
“
Note ” means this Master Revolving Promissory
Note and all modifications, increases, replacements, renewals, and
extensions of such Master Revolving Promissory Note.
“
Portion ” means any principal amount bearing
interest based upon LIBOR.
Any capitalized term
used in this Note and not otherwise defined herein shall have the
meaning ascribed to each such term in the Credit Agreement. All
terms used herein, whether or not defined in this Note, and whether
used in singular or plural form, shall be deemed to refer to the
object of such term whether such is singular or plural in nature,
as the context may suggest or require. Reference is hereby made to
the Credit Agreement for provisions affecting this Note regarding
amounts of allowed draws, payment, prepayments, acceleration of
maturity, exercise of rights, payment of attorneys’ fees,
court costs, and other costs of collection, certain waivers by
Borrower and others, now or hereafter obligated for payment of any
sums due hereunder, and security for the payment hereof.
2.
Promise to
Pay .
For value received, Borrower (jointly and severally if
more than one) unconditionally hereby promises to pay to the order
of Lender, at its place of business located at 8080 North Central
Expressway, Suite 320, Dallas, Texas 75206, or at such other place
as the holder of this Note may hereafter designate, the principal
sum of up to FOUR MILLION AND NO/IOO DOLLARS ($4,000,000.00) or so
much thereof as may be advanced, in lawful money of the United
States of America for the payment of private debts, together with
interest on the unpaid principal balance from time to time owing
hereon computed from the date hereof until maturity at a per annum
rate which shall be, except as otherwise provided in this Note, the
lesser of (a) the Loan Rate in effect from day to day, or (b) the
Maximum Lawful Rate. Interest on this Note is computed on a 365/360
simple interest basis; that is by applying the ratio of the annual
interest over a year of 360 days times the outstanding principal
balance, times the actual number of days the principal balance is
outstanding, unless such calculation would result in a usurious
rate, in which case interest shall be calculated on a per diem
basis of a year of 365 or 366 days as the case may be. All past due
principal and matured unpaid interest, at Lender’s option,
shall bear interest at the Maximum Lawful Rate, whether or not the
maturity of the indebtedness evidenced by this Note has been
accelerated.
MASTER REVOLVING
PROMISSORY NOTE – Page 2
3.
Interest
Rate .
The Loan Rate is subject to change as set forth in the
definition of “Loan Rate.” If an Event of Default has
occurred and is continuing, the option to select LIBOR as a basis
for the Loan Rate shall be suspended until no Event of Default has
occurred and is continuing. No LIBOR Interest Period may extend
beyond the Maturity Date. The determination by. Lender of the Loan
Rate shall, in the absence of manifest error, be conclusive and
binding in all respects. Notwithstanding anything contained herein
to the contrary, if(a) at any time, Lender determines (which
determination shall be conclusive in the absence of manifest error)
that any applicable law or regulation or any change therein or the
interpretation or application thereof or compliance therewith by
Lender (i) prohibits, restricts or makes impossible the charging of
interest based on LIBOR, or (ii) shall make it unlawful for Lender
to make or maintain the indebtedness evidenced by this Note in
eurodollars, or (b) at the time of or prior to the determination of
the Loan Rate, Lender determines (which determination shall be
conclusive in the absence of manifest effort) that by reason of
circumstances affecting the London interbank market generally, (i)
deposits in United States Dollars in the relevant amounts and of
the relevant maturity are not available to Lender in the London
interbank market, (ii) the Loan Rate does not adequately and fairly
reflect the cost to Lender of making or maintain the loan, due to
changes in administrative costs, fees, tariffs and taxes and other
matters outside of Lender’s reasonable control, or (iii)
adequate and fair means do not or will not exist for determining
the Loan Rate as set forth in this Note, then Lender shall give
Borrower prompt notice thereof, and this Note shall bear interest,
and continue to bear interest using a substitute interest rate
designated by Lender based upon comparable information until Lender
determines that the applicable circumstance described in the
foregoing clauses (a)(i) or (ii) or (b)(i) ,
(ii) or (iii) no longer pertains.
4.
Payments
. This Note
is payable as follows:
Interest on the unpaid
principal amount of this Note shall be payable monthly on the first
(1st) day of the first (1st) month following the Effective Date of
this Note and on the first (lst) day of each month thereafter until
this Note is repaid in full or until the Maturity Date, as the case
may be. All remaining unpaid principal and all accrued but unpaid
interest thereon shall be due and payable in full on the Maturity
Date. Borrower may from time to time during the term of this Note
borrow, partially or wholly repay its outstanding borrowings, and
reborr
