Exhibit 10.13
SECOND AMENDED AND RESTATED REVOLVING CREDIT NOTE
$4,250,000
Rockville, Maryland
April 8, 2005
FOR VALUE
RECEIVED, ARGAN, INC., a corporation organized under the laws
of
the State of Delaware ("Argan"), SOUTHERN
MARYLAND CABLE, INC., a corporation
organized under the laws of the State of
Delaware ("SMCI") and VITARICH
LABORATORIES, INC., a corporation organized
under the laws of the State of
Delaware (each a "Borrower" and
collectively "Borrowers"), jointly and severally
promise to pay to the order of BANK OF
AMERICA, N.A., a national banking
association (the "Lender"), the principal
sum of FOUR MILLION TWO HUNDRED FIFTY
THOUSAND DOLLARS ($4,250,000) (the
"Principal Sum"), or so much thereof as has
been or may be advanced or readvanced to or
for the account of the Borrowers
pursuant to the terms and conditions of
this Amended and Restated Revolving
Credit Note (including all renewals,
extensions or modifications hereof, this
"Note"), together with interest thereon at
the rate or rates hereinafter
provided, in accordance with the
following:
1. Interest.
Commencing
as of the date hereof and continuing until repayment in full of
all sums due hereunder, the unpaid
Principal Sum shall bear interest at the
LIBOR Rate plus three and one quarter
percent (3.25%) per annum. For purposes
hereof, the "LIBOR Rate" shall mean a daily
fluctuating rate equal to the one
(1) month rate of interest (rounded
upwards, if necessary to the nearest 1/100
of 1%) appearing on Telerate Page 3750 (or
any successor page) as the one (1)
month London interbank offered rate for
deposits in U.S. Dollars at
approximately 11:00 A.M. (London, time), on
the second preceding business day,
as adjusted from time to time in the
Lender's sole discretion for
then-applicable reserve requirements,
deposits insurance assessment rates and
other regulatory costs. If for any reason
such rate is not available, the term
"LIBOR Rate" shall mean the fluctuating
rate of interest equal to the one (1)
month rate of interest (rounded upwards, if
necessary to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page
as the one (1) month London interbank
offered rate for deposits in U.S. Dollars
at approximately 11:00 a.m. (London
Time) on the second preceding business day,
as adjusted from time to time for
then-applicable reserve requirements,
deposit insurance assessment rates and
other regulatory costs; provided, however,
if more than one rate is specified on
Reuters Screen LIBO page, the applicable
rate shall be the arithmetic mean of
all such rates.
The rate
of interest charged under this Note shall change immediately
and
contemporaneously with any change in the
LIBOR Rate. All interest payable under
the terms of this Note shall be calculated
on the basis of a 360-day year and
the actual number of days elapsed.
2.
Payments and Maturity.
The unpaid
Principal Sum, together with interest thereon at the rate or
rates provided above, shall be payable as
follows:
(a)
Interest only on the unpaid Principal Sum shall be due and
payable
monthly, commencing April 30, 2005, and on
the last day of each month thereafter
to maturity; and
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(b) Unless
sooner paid, the unpaid Principal Sum, together with interest
accrued and unpaid thereon, shall be due
and payable in full on May 31, 2006.
The fact
that the balance hereunder may be reduced to zero from time to
time pursuant to the Financing Agreement
will not affect the continuing validity
of this Note or the Financing Agreement,
and the balance may be increased to the
Principal Sum after any such reduction to
zero.
Borrower
hereby authorizes Lender to automatically deduct from
Borrower's
account numbered 003939628068 the amount of
each payment of principal (including
without limitation the principal payment
due on the final maturity date) and/or
interest on the dates such payments become
due. If the funds in the account are
insufficient to cover any payment, Lender
shall not be obligated to advance
funds to cover the payment. At any time and
for any reason, Borrower or Lender
may voluntarily terminate automatic
payments as provided in this paragraph.
3. Default
Interest.
Upon the
occurrence of an Event of Default (as hereinafter defined), the
unpaid Principal Sum shall bear interest
thereafter at the Post-Default Rate
until such Event of Default is cured.
4. Late
Charges.
If the
Borrowers shall fail to make any payment under the terms of
this
Note within five (5) days after the date
such payment is due, the Borrowers
shall pay to the Lender on demand a late
charge equal to five percent (5%) of
such payment.
5.
Application and Place of Payments.
All
payments, made on account of this Note shall be applied first to
the
payment of accrued and unpaid interest then
due hereunder, and the remainder, if
any, shall be applied to the unpaid
Principal Sum. All payments on account of
this Note shall be paid in lawful money of
the United States of America in
immediately available funds during regular
business hours of the Lender at its
principal office in Rockville, Maryland or
at such other times and places as the
Lender may at any time and from time to
time designate in writing to the
Borrowers.
6.
Financing Agreement and Other Financing Documents.
This Note
is the "Revolving Credit Note" described in a Financing and
Security Agreement, dated August 19, 2003,
by and among Argan, SMCI and the
Lender (as amended, modified, restated,
substituted, extended and renewed at any
time and from time to time, the "Financing
Agreement"). This Note increases,
amends and restates in its entirety that
certain Amended and Restated Revolving
Credit Note (the "Prior Note") in the
maximum principal sum of Three Million
Five Hundred Thousand Dollars ($3,500,000)
dated August 31, 2004 from the
Borrowers in favor of the Lender. It is
expressly agreed that the indebtedness
evidenced by the Prior Note has not been
extinguished or discharged hereby. The
Borrowers and the Lender agree that the
execution of this Note is not intended
to and shall not cause or result in a
novation with respect to the Prior Note.
The indebtedness evidenced by this Note is
included within the meaning of the
term "Obligations" as defined in the
Financing Agreement. The term "Financing
Documents" as used in this Note shall mean
collectively this Note, the Term
Note, the Financing Agreement and any other
instrument, agreement, or document
previously, simultaneously, or hereafter
executed and delivered by any Borrower
and/or any other Person, singularly or
jointly with any other Person,
evidencing, securing, guaranteeing, or in
connection with the Principal Sum,
this Note and/or the Financing
Agreement.
<PAGE>
7.
Security.
This Note
is secured as provided in the Financing Agreement.
8. Events
of Default.
The
occurrence of any one or more of the following events shall
constitute
an event of default (individually, an
"Event of Default" and collectively, the
"Events of Default") under the terms of
this Note:
(a) The failure of any Borrower to pay to the Lender within five
(5)
days of when due any and all amounts
payable by any Borrower to the Lender under
the terms of this Note; or
(b) The occurrence of an Event of Default (as defined therein)
under
the terms and conditions of any of the
other Financing Documents.
9. Remedies.
Upon the
occurrence of an Event of Default, at the option of the Lender,
all amounts payable by the Borrowers to the
Lender under the terms of this Note
shall immediately become due and payable by
the Borrowers to the Lender without
notice to the Borrowers or any other
Person, and the Lender shall have all of
the rights, powers, and remedies available
under the terms of this Note, any of
the other Financing Documents and all
applicable laws. The Borrowers and all
endorsers, guarantors, and other parties
who may now or in the future be
primarily or secondarily liable for the
payment of the indebtedness evidenced by
this Note hereby severally waive
presentment, protest and demand, notice of
protest, notice of demand and of dishonor
and non-payment of this Note and
expressly agree that this Note or any
payment hereunder may be extended from
time to time without in any way affecting
the liability of the Borrowers,
guarantors and endorsers.
10.
Confessed Judgment.
Upon the
occurrence of an Event of Default, each Borrower hereby
authorizes any attorney designated by the
Lender or any clerk of any court of
record to appear for the Borrowers in any
court of record and confess judgment
without prior hearing against the Borrowers
in favor of the Lender for and in
the amount of the unpaid Principal Sum, all
interest accrued and unpaid thereon,
all other amounts payable by any Borrower
to the Lender under the terms of this
Note or any of the other Financing
Documents, costs of suit, and attorneys' fees
of fifteen pe
