Exhibit 10.18
TERM NOTE
Executed as of the 7th day of
May, 1997 at Baltimore, Maryland
Amount: $3,500,000.00
FOR VALUE RECEIVED, the undersigned ("Borrower") promises to pay to the
order of LASALLE BUSINESS CREDIT, INC. (hereinafter, together with any holder
hereof, called "LaSalle"), at the main office of the LaSalle, the principal sum
of Three Million Five Hundred Thousand Dollars ($3,500,000.00), together with
interest on the outstanding principal amount hereof on the dates and at the
rates provided in the Loan Agreement (as hereafter defined) from the date hereof
until payment in full hereof.
This Term Note is referred to in and was delivered pursuant to
paragraph 2 of that certain Loan And Security Agreement dated May 7, 1997, as it
may be amended from time to time, together with all exhibits thereto, between
LaSalle and Borrower (the "Loan Agreement"). All terms which are capitalized and
used herein (which are not otherwise defined herein) shall have the meanings
ascribed to such terms in the Loan Agreement.
For so long as no Event of Default shall have occurred under the Loan
Agreement, the principal amount and accrued interest of this Note shall be due
and payable on the dates and in the manner hereinafter set forth:
(a) Interest shall be due and payable monthly, in arrears, on
the first day of each month, commencing on the first day of the first
month after the date of this Note, and continuing until such time as
the full principal balance, together with all other amounts owing
hereunder, shall have been paid in full;
(b) Commencing on June 1, 1997, and continuing on the first
day of each month thereafter to and including the first day of January,
2000, principal payments in the amount of Ninety-Seven Thousand Two
Hundred Twenty-Two Dollars and Twenty-Two Cents ($97,222.22) each; and
(c) On January 23, 2000, a final principal payment equal to
the entire unpaid principal balance hereof, together with any and all
other amounts due hereunder.
Notwithstanding the foregoing, the entire unpaid principal balance and accrued
interest on this Note shall be due and payable immediately upon any termination
of the Loan Agreement. In addition, within ten (10) business days after a
Securities Offering, the Borrower shall pay LaSalle a principal payment in the
amount of Two Million Dollars ($2,000,000.00) to be applied in the inverse order
of scheduled maturities.
Borrower hereby authorizes XxXxxxx to charge any account of Xxxxxxxx
for all sums due hereunder. If payment hereunder becomes due and payable on a
Saturday, Sunday or legal holiday under the laws of the United States or the
State of Illinois, the due date thereof shall be extended to the next succeeding
business day, and interest shall be payable thereon at the rate specified during
such extension. Credit shall be given for payments made in the manner and at the
times provided in the Loan Agreement. It is the intent of the parties that the
rate of interest and other charges to Borrower under this Note shall be lawful;
therefore, if for any reason the interest or other charges payable hereunder are
found by a court of competent jurisdiction, in a final determination, to exceed
the limit which LaSalle may lawfully charge Borrower, then the obligation to pay
interest or other charges shall automatically be reduced to such limit and, if
any amount in excess of such limit shall have been paid, then such amount shall
be refunded to Borrower.
The principal and all accrued interest hereunder may be prepaid by
Xxxxxxxx, in part or in full, at any time; provided, however, that if Borrower
prepays all of the Obligations prior to the end of the Term, Borrower shall pay
a prepayment fee as provided in the Loan Agreement.
Borrower waives the benefit of any law that would otherwise restrict or
limit LaSalle in the exercise of its right, which is hereby acknowledged, to
set-off against the Obligations, without notice and at any time hereafter, any
indebtedness matured or unmatured owing from LaSalle to Borrower. Borrower's
obligations under this Note shall be the absolute and unconditional duty and
obligation of Borrower and shall be independent of any rights of set-off,
recoupment or counterclaim which Borrower might otherwise have against LaSalle,
and Borrower shall pay absolutely the payments of principal, interest, fees and
expenses required hereunder, free of any deductions and without abatement,
diminution, or set-off.
Time is of the essence of this Note. Borrower, any other party liable
with respect to the Obligations and any and all endorsers and accommodation
parties, and each one of them, if more than one, waive any and all presentment,
demand, notice of dishonor, protest, and all other notices and demands in
connection with the enforcement of XxXxxxx's rights hereunder.
Upon the occurrence of an Event of Default, including without
limitation the failure to pay in full any installment of principal or interest
on the due date thereof or the failure to pay all sums due hereunder upon the
maturity date, in addition to all other rights or remedies available to LaSalle
under the Loan Agreement or any Other Agreement or under applicable law,
Borrower authorizes any attorney admitted to practice before any court of record
in the United States to appear on behalf of Borrower in any court in one or more
proceedings, or before any clerk thereof or prothonotary or other court
official, and to confess judgment against Xxxxxxxx in
favor of XxXxxxx in the full amount due on this Note (including principal,
accrued interest and any and all charges, fees and costs), plus attorneys' fees
equal to fifteen percent (15%) of the amount due, plus court costs, all without
prior notice or opportunity of Borrower for prior hearing. Xxxxxxxx agrees and
consents that venue and jurisdiction shall be proper in the Circuit Court of any
County of the State of Maryland or of Baltimore City, Maryland, or in the United
States District Court for the District of Maryland. Borrower waives the benefit
of any and every statute, ordinance, or rule of court which may be lawfully
waived conferring upon Borrower any right or privilege of exemption, homestead
rights, stay of execution, or supplementary proceedings, or other relief from
the enforcement or immediate enforcement of a judgment or related proceedings on
a judgment. The authority and power to appear for and enter judgment against
Xxxxxxxx shall not be exhausted by one or more exercises thereof, or by any
imperfect exercise thereof, and shall not be extinguished by any judgment
entered pursuant thereto; such authority and power may be exercised on one or
more occasions from time to time, in the same or different jurisdictions, as
often as LaSalle shall deem necessary, convenient, or proper. Notwithstanding
XxXxxxx's right to obtain a judgment by confession which includes attorneys'
fees in an amount equal to fifteen percent (15%) of the amount due hereunder,
XxXxxxx shall only collect attorneys' fees in an amount equal to the actual
legal fees and expenses incurred by XxXxxxx in connection with the collection of
the sums due under this Term Note and the enforcement of LaSalle's rights under
this Term Note and the Loan Agreement.
No delay or failure on the part of LaSalle in the exercise of any right
or remedy hereunder shall operate as a waiver thereof, nor as an acquiescence in
any default, nor shall any single or partial exercise by LaSalle of any right or
remedy preclude any other right or remedy. LaSalle, at its option, may enforce
its rights against any collateral securing this Note without enforcing its
rights against Borrower, any guarantor of the indebtedness evidenced hereby or
any other property or indebtedness due or to become due to Borrower. Xxxxxxxx
agrees that, without releasing or impairing Xxxxxxxx's liability hereunder,
XxXxxxx may at any time release, surrender, substitute or exchange any
collateral securing this Note and may at any time release any party primarily or
secondarily liable for the indebtedness evidenced by this Note.
The loan evidenced hereby has been made and this Note shall be deemed
to have been delivered at Baltimore, Maryland. THIS NOTE SHALL BE GOVERNED AND
CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF MARYLAND AS TO INTERPRETATION,
ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS,
INCLUDING WITHOUT LIMITATION, THE LEGALITY OF THE INTEREST RATE AND OTHER
CHARGES, and shall be binding upon Borrower and Xxxxxxxx's heirs, legal
representatives, successors and assigns. If this Note contains any blanks when
executed by Xxxxxxxx, XxXxxxx is hereby authorized, without notice to Borrower
to complete any such blanks according to the terms upon which the loan or loans
were granted. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or be invalid
under such law, such provision shall be severable, and be ineffective to the
extent of such prohibition or invalidity, without invalidating the remaining
provisions of this Note. If more than one party shall execute this Note, the
term "Borrower" as used herein shall mean all parties signing this Note, and
each one of them, and all such parties, their respective heirs, executors,
administrators, successors and assigns, shall be jointly and severally obligated
hereunder.
To induce LaSalle to make the loan evidenced by this Note, Borrower (i)
irrevocably agrees that, subject to XxXxxxx's sole and absolute election, all
actions arising directly or indirectly as a result or in consequence of this
Note or any other agreement with LaSalle, or the Collateral, shall be instituted
and litigated only in courts having situs in the State of Maryland, (ii) hereby
consents to the exclusive jurisdiction and venue of any State or Federal Court
located and having its situs in said state, and (iii) hereby waives any
objection based on forum non-conveniens. Borrower waives personal service of any
and all process, and consents that all such service of process may be made by
certified mail, return receipt requested, directed to Borrower at the address
indicated in the Loan Agreement, and service so made shall be complete five (5)
days after the same has been deposited in the U.S. mails as aforesaid.
IN ADDITION, BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS NOTE, THE OBLIGATIONS,
THE COLLATERAL, ANY ALLEGED TORTIOUS CONDUCT BY BORROWER OR LASALLE, OR WHICH IN
ANY WAY, DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP
BETWEEN BORROWER AND XXXXXXX.
As used herein, all provisions shall include the masculine, feminine,
neuter, singular and plural thereof, wherever the context and facts require such
construction and in particular the word "Borrower" shall be so construed.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note on the date above
set forth, with the intention that this Note constitute an instrument under
seal.
ATTEST: THE ANTIGUA GROUP, INC.,
A Nevada Corporation
/s/ Xxxxxx X.X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx (SEAL)
Xxxxxx X. Xxxxxxx
Vice President - Finance
ACKNOWLEDGEMENT
STATE OF ARIZONA, CITY/COUNTY OF MARICOPA, TO WIT:
I HEREBY CERTIFY that on this 7th day of May, 1997, before me, the
undersigned Notary Public of the State aforesaid, personally appeared Xxxxxx X.
Xxxxxxx and acknowledged himself to be the Vice President of Finance of THE
ANTIGUA GROUP, INC., a Nevada corporation, and that he, as the Vice President,
being authorized so to do, executed the foregoing instrument for the purposes
therein contained by signing the name of THE ANTIGUA GROUP, INC., by himself as
Vice President.
IN WITNESS MY Hand and Notarial Seal.
/s/ Xxxxxx X. Xxxxxx (SEAL)
NOTARY PUBLIC
My Commission Expires:
September 23, 1998
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FOR INTERNAL USE ONLY
Officer's Initials: __________
Approval: __________