Exhibit 99.3
THIS INSTRUMENT/AGREEMENT IS SUBJECT TO AN INTERCREDITOR AGREEMENT DATED
FEBRUARY 8, 2000, AMONG MMW ACQUISITION, LLC, TELAXIS COMMUNICATIONS CORPORATION
AND CITIZENS BANK OF RHODE ISLAND. BY ITS ACCEPTANCE OF THIS
INSTRUMENT/AGREEMENT, THE HOLDER HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF
SUCH INTERCREDITOR AGREEMENT TO THE SAME EXTENT THAT THE SELLER (AS DEFINED
THEREIN) IS BOUND.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS AND THIS NOTE MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER OR OTHER DISPOSITION
HAS BEEN REGISTERED UNDER THE ACT AND SUCH LAWS OR AN EXEMPTION UNDER THE ACT
AND SUCH LAWS IS AVAILABLE FOR THEIR TRANSFER OR OTHER DISPOSITION.
MMW ACQUISITION, LLC
PROMISSORY NOTE
$1,210,000.00 February 8, 2000
MMW ACQUISITION, LLC, a Massachusetts limited liability company, (the
"Company"), for value received, hereby promises to pay to TELAXIS COMMUNICATIONS
CORPORATION (the "Payee") or order, the principal amount of $1,210,000.00 and to
pay interest on the principal amount from time to time remaining unpaid hereon,
at a rate per annum equal to 12% from the date hereof. The principal of this
Note shall be payable in five equal semi-annual payments of $50,000 beginning on
July 1, 2002, and on December 31, 2004, the entire balance of the principal of
this Note, including accrued interest, shall be due and payable. Interest as
aforesaid shall be payable semi-annually on the first days of January and July
of each year during the term of this note, beginning July 1, 2000. Both the
principal hereof and interest hereon are payable in immediately available funds
in coin or currency of the United States of America which at the time of payment
shall be legal tender for the payment of public and private debts at such place
as the Payee may from time to time designate in writing delivered to the
Company; provided, however, that such payment may be made by a Company check
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deposited in the United States mail on the due date set forth above for such
payment, postage prepaid, registered or certified mail and addressed to the
Payee as set forth in the Company's records.
The principal amount of this Note may be prepaid at any time, and from
time to time, without notice, penalty or premium. All such partial prepayments
shall be applied to installments of principal due on this Note in the reverse
order of approaching maturities. Such partial prepayments shall not reduce or
postpone the obligation to make regular installments of principal and interest
hereunder as aforesaid, but may accelerate the maturity of this Note.
No delay or omission on the part of the Payee in the exercise of any
right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude any other or further
exercise thereof or the exercise of any other right or remedy.
The Company agrees to pay on demand all costs and expenses, including,
without limitation reasonable attorney's fees, incurred by the Payee in
endeavoring to enforce the rights of the Payee hereunder; provided, however,
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that the Company shall not be obligated to pay such costs and expenses incurred
by the Payee in wrongfully accelerating payment or otherwise wrongfully seeking
to enforce its rights hereunder. The Company hereby waives demand, presentment
and protest and notices thereof as well as notice of non-payment.
Subordination
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(a) The indebtedness evidenced by this Note shall at all times be
wholly subordinate and junior in right of payment to any and all Senior
Indebtedness (as defined below) in the manner and with the force and effect
hereafter set forth:
(i) In the event of any liquidation, dissolution or winding up of
the Company, or of any execution sale, receivership, insolvency,
bankruptcy, reorganization or other similar proceeding relating to the
Company or its property, all principal and interest owing on all Senior
Indebtedness shall first be paid in full before any payment is made
upon the indebtedness evidenced by this Note; and in any such event any
payment or distribution of any kind or character, whether in cash,
property or securities (other than in securities or other evidences of
indebtedness, the payment of which is subordinated, to the same extent
as the indebtedness evidenced hereby, to the payment of all Senior
Indebtedness which may at the time be outstanding) which shall be made
upon or in respect of this Note shall be paid over to the holders of
such Senior Indebtedness, pro rata, for application in payment thereof
until such Senior Indebtedness shall have been paid or satisfied in
full.
(ii) (A) During the continuance of any default in any agreement
pursuant to which any Senior Indebtedness is issued which arises from
the failure to pay when due (whether by acceleration or otherwise) any
principal of, premium, if any, interest on, fees or other amounts in
respect of such Senior Indebtedness (a "Senior Payment Default"), no
payment of principal or interest shall be made on this Note if either
(1) notice in writing of such default has been given to the Company by
any holder or holders of any Senior Indebtedness or (2) judicial
proceedings shall be pending in respect of such default.
(B) During the continuance of any event of default or
unmatured event of default in any agreement pursuant to which any
Senior Indebtedness is issued other than a Senior Payment Default (a
"Senior Non-Payment Default") as to which the
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Company has received notice in writing from any holder or holders of
Senior Indebtedness, no payment of principal or interest shall be made
on this Note for a period (each, a "Payment Blockage Period")
commencing on the date of receipt by the Company of such notice and
terminating on the earliest to occur of the following dates: (1) the
date of acceleration of the Senior Indebtedness, (2) 180 days after the
Company's receipt of such written notice, (3) the date such Senior
Non-Payment Default shall have been cured or waived, or shall have
ceased to exist, (4) the date the Senior Indebtedness shall have been
discharged or paid in full in cash, or (5) the date such Payment
Blockage Period shall have been terminated by written notice to the
Company from the holder or holders of Senior Indebtedness initiating
such Payment Blockage Period; after which, in the case of clauses (2),
(3), (4) and (5), the Company shall resume making payments in respect
of this Note, unless clause (ii)(A) above is then applicable.
(iii) If this Note is declared or becomes due and payable because
of the occurrence of any default hereunder under circumstances when
clause (i) above shall not be applicable, the Payee shall not be
entitled to payments until 120 days after such event and then only if
such payment is permitted under clauses (i) and (ii) above.
(b) The Payee shall, for the benefit of each holder of Senior
Indebtedness, execute, verify, deliver and file any proof of claim, consent,
assignment or other instrument which any holder of Senior Indebtedness may any
at time require in order to prove and realize upon any right or claim pertaining
to this Note and to effectuate the full benefit of the subordination contained
herein; and upon failure of the Payee so to do any such holder of Senior
Indebtedness shall be deemed to be irrevocably appointed the agent and
attorney-in-fact of the Payee to execute, verify, deliver and file any such
proof of claim, consent, assignment or other instrument.
(c) No right of any holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time or in any way be affected or
impaired by any failure to act on the part of the Company or any holder of
Senior Indebtedness, or by any non-compliance by the Company with any term,
provision or covenant of this Note or the agreement under which it is issued,
regardless of any knowledge thereof that any such holder of Senior Indebtedness
may have or otherwise be charged with.
(d) "Senior Indebtedness" means (i) all obligations of the Company to
any bank or other financial institution for funded debt, in each case whether
for principal, interest (including any interest that would accrue but for the
filing of a petition initiating any bankruptcy, insolvency or like proceeding,
whether or not such interest is an allowed claim enforceable against the
debtor), fees, expenses or otherwise and (ii) all obligations of the Company
under or in connection with any interest rate swap agreement or similar hedging
arrangement (as amended or otherwise modified from time to time) with any bank
or other financial institution for the purpose of affecting the net cost of
interest payable on any loan.
Miscellaneous
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Notices hereunder shall be given as provided in the Asset Purchase
Agreement of even date between the Payee and the Company.
This Note may not be assigned or otherwise transferred in compliance
with all applicable laws.
This Note shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
MMW ACQUISITION, LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Manager and President
We agree to the subordination provisions of the foregoing Note, and agree to act
in accordance with the provisions of paragraph (b) of such subordination
provisions.
TELAXIS COMMUNICATIONS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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its Vice President
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