Exhibit 10.5
TERM NOTE
$46,200,000.00 St. Louis, Missouri
February 3, 1998
For value received, DAVEL COMMUNICATIONS GROUP, INC., an Illinois
corporation ("Borrower"), promises to pay to the order of NATIONSBANK, N.A., or
to any subsequent holder hereof (in any case, "Holder"), the principal amount of
FORTY SIX MILLION TWO HUNDRED THOUSAND DOLLARS ($46,200,000.00), which amount
Borrower acknowledges has been advanced to Borrower under the terms of the
Credit Facilities Agreement dated as of even date herewith, among Borrower,
NationsBank N.A., as Administrative Agent for the ratable benefit of itself and
each of the other Lenders ("Administrative Agent"), Suntrust Bank, Tampa Bay, as
Documentation Agent and a Lender, and the other Lenders (as it may be amended,
restated, extended, renewed, replaced, or otherwise modified from time to time,
the "Credit Agreement"). All capitalized terms used and not otherwise defined
herein have the meanings given them in the Credit Agreement.
Xxxxxxxx promises to pay the foregoing principal amount as provided in the
Credit Agreement. Xxxxxxxx promises to pay on the dates as provided in the
Credit Agreement interest accrued from the date hereof on the principal balance
outstanding from to time. Until Maturity, by acceleration or otherwise, interest
shall accrue at a per annum rate or rates determined pursuant to the Credit
Agreement. Upon the occurrence of any Event of Default, or at the option of
Holder upon the occurrence of a Default as defined in the Credit Agreement, all
outstanding principal and, to the extent permitted by law, interest accrued
under this Note but unpaid and all other amounts owing to Holder under this Note
and the Loan Documents, payable on demand, at the Default Rate. After the
Maturity Date, interest shall accrue at the Default Rate. All interest shall be
computed on the basis of a year deemed to consist of 360 days and paid for the
actual number of days elapsed.
Both principal and interest are payable in Dollars to Administrative Agent
at the Applicable Lending Office of Administrative Agent.
This Note is secured under the Security Documents by the Collateral
described therein. The Loan Documents, including the Security Documents,
describe the rights of Xxxxxx and Administrative Agent with respect to the
Collateral.
Borrower is required to prepay the principal amount of this Note to the
extent required in the Credit Agreement. Borrower has the right to prepay the
principal amount of this Note to the extent and subject to the conditions
provided in the Credit Agreement.
The date and amount of all advances and repayments of principal and
payments of interest will be recorded in the records that Holder normally
maintains for instruments and agreements similar to this Note and the other Loan
Documents. The failure to record, or any error in recording, any of the
foregoing does not, however, affect the obligation of Borrower to pay principal,
interest and other amounts as required under this Note and the other Loan
Documents. Xxxxxxxx agrees that Xxxxxx's books and records showing advances and
repayments are admissible in any action or proceeding arising therefrom, and
constitute prima
facie proof thereof. Such records are deemed accurate and binding on Borrower
and an account stated, except as expressly provided otherwise in the Credit
Agreement.
Reference is made to the Credit Agreement for provisions regarding the
acceleration of the maturity hereof upon the occurrence of any Event of Default,
and such provisions are incorporated herein by this reference.
If any payment required under this Note is not made when due, or upon any
other Event of Default, Borrower will pay all costs of collection, including
court costs and reasonable attorneys fees and actual expenses of such attorneys,
whether or not there is litigation, including representation of Holder and
Administrative Agent and all costs incurred in connection with any bankruptcy or
insolvency proceeding involving Borrower as a debtor, in each case, to the
extent set forth in the Credit Agreement.
Borrower and all other Persons who become parties obligated under this
Note, whether as guarantors, sureties, endorsers or otherwise, waive any right
to demand for payment, any requirement for protest or notice of dishonor, all
other rights to notice or demands with respect to this Note, any defense based
on lack of diligence in the enforcement of this Note, and any defense which such
party may have based on suretyship or impairment of collateral. Every such party
assents to each and every extension or postponement of the time of payment,
whether at or after demand, or other indulgence, and waives any right to notice
thereof.
No amendment, modification or waiver of any provision of this Note, or
consent to any departure by Borrower herefrom, will be effective unless the same
is in writing signed by an authorized officer of Holder, and then only in the
specific instance and for the specific purpose for which given. No failure on
the part of Holder or Administrative Agent to exercise, and no delay in
exercising, any right under this Note operates as a waiver thereof, and no
single or partial exercise by Holder or Administrative Agent of any right under
this Note precludes any other or further exercise thereof, or the exercise of
any other right. Each and every right granted to Holder under this Note or
allowed to it at law or in equity is cumulative and such remedies may be
exercised from time to time concurrently or consecutively at Holder's option.
All notices required to be given or which may be given in connection with
this Note shall be given in the manner required for notices under the Credit
Agreement.
This Note is governed by and shall be construed and interpreted in
accordance with the internal laws of the State of Missouri applicable to
contracts made and to be performed wholly within such state, without regard to
choice or conflicts of law principles.
DAVEL COMMUNICATIONS GROUP, INC.
By:______________________________
Name:____________________________
Title:___________________________
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