Exhibit 10.05
TERM NOTE
$70,000,000 Pittsburgh, Pennsylvania
January 4, 1996
FOR VALUE RECEIVED and intending to be legally bound hereby,
Leadership Acquisition Limited Partnership, a Delaware limited partnership (the
"Maker"), hereby promises to pay to Fairbanks Communications, Inc., an Indiana
corporation ("Holder"), SEVENTY MILLION DOLLARS (U.S. $70,000,000), without
interest, on December 30, 1997. Notwithstanding the foregoing, the principal
amount of this Note due on December 30, 1997 (the "Balance Payment") shall be
subject to adjustment as provided in that certain Asset Purchase Agreement dated
as of June 8, 1995 among Olympus Communications, L.P., Holder and Leadership
Security Services, Inc., as amended (the "Asset Purchase Agreement") and as more
particularly described below. All capitalized terms used herein shall have the
same meanings ascribed to such terms in the Asset Purchase Agreement unless
otherwise defined herein. This Note is issued pursuant to the Asset Purchase
Agreement and is entitled to the benefits of that Agreement, the Security
Agreement, the Mortgage and the Agreement of Guaranty and Suretyship.
The Balance Payment shall be subject to adjustment and deferral
as set forth in this paragraph. Attached as Schedule 2.5(e)-1 to the Asset
Purchase Agreement are projections of the number of Basic Subscribers for
certain months of 1995. If, on the Closing Date, the actual number of Basic
Subscribers ("Actual Subscribers") for the month most recently completed prior
to the Closing Date is less than the projected number of Basic Subscribers
("Projected Subscribers") for the same month as specified on Schedule 2.5(e)-1,
the Balance Payment shall be reduced by an amount ("Supplemental Balance
Payment") not to exceed $2,000,000 which shall be equal to the product of (i)
the Projected Subscribers less the Actual Subscribers and (ii) $2,200. If, as of
December 31, 1996, there are at least 52,000 Basic Subscribers of the System,
there shall be no Supplemental Balance Payment but the Balance Payment shall be
reduced by an amount equal to $1 million, which amount shall be due and payable
on August 31, 1999 (or, if such date is not a Business Day, on the next
preceding Business Day) and shall bear interest at the Treasury Rate (as defined
below) from December 31, 1997 until the payment thereof to Holder. If, as of
December 31, 1996, there are less than 52,000 Basic Subscribers of the System,
the Balance Payment shall be reduced only by the greater of $1 million (the
"Alternative Supplemental Balance Payment") or the Supplemental Balance Payment.
If the Supplemental Balance Payment is less than the Alternative Supplemental
Balance Payment, the amount of the difference shall bear interest at the
Treasury Rate from December 31, 1997 until December 31, 1998. The Alternative
Supplemental Balance Payment shall be due and payable on August 31, 1999 (or, if
such date is not a Business Day, on the next preceding Business Day) and shall
bear interest at the Treasury Rate from December 31, 1998 until the payment
thereof to Holder. If the Supplemental Balance Payment is greater than the
Alternative Supplemental Balance Payment, the amount of the difference shall be
due and payable on December 31, 1998 (or, if such date is not a Business Day, on
the next preceding Business Day) and an amount equal to the Alternative
Supplmental Balance Payment shall be due and payable on August 31, 1999 (or, if
such date is not a Business Day, on the next preceding Business Day). The amount
equal to the Alternative Supplmental Balance Payment shall bear interest at the
Treasury Rate from December 31, 1998 until the payment thereof to Holder. All
interest payable pursuant to this paragraph shall be due at maturity. Upon
payment of the Balance Payment on December 30, 1997 (subject to adjustment as
provided herein), Xxxxxx agrees to release, or cause the release, of all
security interests, liens and encumbrances granted pursuant to the Security
Agreement and/or the Mortgage. As used herein, the term "Treasury Rate" means
the rate, as the most recently published in the Federal Revenue Statistical
Release H.15 (519), on United States Treasury Constant Maturities adjusted to a
constant maturity of two years.
All amounts due and payable hereunder shall be payable in lawful
money of the United States of America in immediately available funds to Holder
at such place in Indianapolis, Indiana, as the Holder may designate in writing
to the Maker within two business days prior to the due date or at such other
place within the Continental United States as the Holder may designate in
writing to the Maker within two business days prior to the due date.
The Maker shall have the right from time to time to prepay the
principal amount outstanding under this Note in whole or in part without premium
or penalty.
An Event of Default shall mean the occurrence or existence of any
one or more of the following events or conditions (whatever the reason therefor
and whether voluntary, involuntary or effected by operation of law):
(i) The Maker shall fail to pay any principal due under this Note
after such principal shall become due in accordance with the terms hereof;
(ii) A proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
the Maker in an insolvency case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or a receiver,
liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar
official) of the Maker for any substantial part of its property, or for the
winding up or liquidation of its affairs and such proceeding shall remain
undismissed or unstayed and in effect for a period of 90 consecutive days or
such court shall enter a decree or order granting any of the relief sought in
such proceedings;
(iii) The Maker shall commence a voluntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment or
taking possession by receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or other similar official) of itself or for any
substantial part of its property or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any action in furtherance of any of the foregoing; or
(iv) The Maker shall convey or encumber or otherwise dispose of
all or any material portion of the Assets prior to December 30, 1997, without
the prior written consent of Xxxxxx.
If an Event of Default specified under clause (i) shall occur and
be continuing, the Holder may declare the unpaid principal amount then
outstanding under this Note to be forthwith due and payable, and the same shall
thereupon become and be immediately due and payable to the Holder without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived; and if an Event of Default specified under clauses
(ii), (iii) or (iv) above shall occur, the unpaid principal amount then
outstanding under this Note shall be immediately due and payable, without
protest, demand, or notice of any kind, all of which are hereby expressly
waived.
If any principal amount of this Note is not paid when due such
amount shall bear interest until paid at the Prime Rate published in the Wall
Street Journal from time to time on and after such due or, if the regular
publication of the Prime Rate in the Wall Street Journal shall be discontinued
prior to that date, at the Prime Rate that is the average base rate on corporate
loans charged by the five (5) largest banks in the State of New York, on and
after such date. Any interest payable pursuant to this paragraph shall be in
lieu of (and not in addition to) any other interest payable hereunder.
In the event any one or more of the provisions contained in this
Note shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not effect any
other provision of this Note, and this Note shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
The Maker hereby represents and warrants to the Holder that this
Note has been duly authorized, executed and delivered by the Maker and
constitutes a legal, valid and binding obligation of the Maker enforceable
against it in accordance with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or similar laws affecting the enforcement of creditors rights generally and the
possible unavailability of certain equitable remedies.
This Note may not be waived, changed, modified or discharged
orally or except by an agreement in writing signed by the party against whom the
enforcement of waiver, change, modification or discharge is sought.
All notices given to or made upon any party thereto shall be in
writing and shall be delivered or sent to the respective parties at the
addresses and numbers set forth under their respective names on the signature
pages hereof or in accordance with any subsequent unrevoked written direction
from any party to the others. All notices shall be effective (i) in the case of
facsimile, when received; (ii) in the case of hand-delivered notice, when
hand-delivered; and (iii) if given by mail, four (4) days after such
communication is deposited in the mails with first-class postage prepaid, return
receipt requested.
This Note shall be binding upon, inure to the benefit of, and be
enforceable by the Maker and the Holder and their respective successors and
assigns, except that the maker shall not
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have the right to assign this Note or its obligations hereunder without the
prior written consent of Xxxxxx.
This Note shall be governed by the internal law of the State of
Florida.
WITNESS the due execution hereof.
LEADERSHIP ACQUISITION
LIMITED PARTNERSHIP
By: Olympus Communications, L.P.,
Managing General Partner
By: ACP Holdings, Inc.,
Managing General Partner
By:
Name:
Title:
Address for Notice:
0 Xxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Deputy General Counsel
Fairbanks Communications, Inc.
By:
Name:
Title:
Address for Notice:
Xxxxxxx X. Xxxxxx, Esq.
One American Square
P.O. Box 82001
Indianapolis, IN 46282-0002