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IMPORTANT NOTICE
THIS NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION WHICH
CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A
BORROWER AND ALLOWS THE LENDER TO OBTAIN A JUDGMENT AGAINST
YOU WITHOUT FURTHER NOTICE.
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT NOTE
This FOURTH AMENDED AND RESTATED REVOLVING CREDIT NOTE (this "Note") is
made this 15th day of December, 2000, between COMPUTER LEARNING CENTERS, INC.
(the "Borrower") and FIRST UNION NATIONAL BANK, successor-by-merger to
CORESTATES BANK, N.A. (the "Lender").
RECITALS
1. The Borrower is indebted to the Lender under a Third Amended and
Restated Revolving Credit Note dated May 15, 2000 in the face amount of
$9,200,000.00 (the "Revolving Credit Note"). The Revolving Credit Note evidences
a $9,200,000.00 credit facility which the Lender has made available to the
Borrower.
2. The Borrower and the Lender have agreed to execute this Fourth
Amended and Restated Revolving Credit Note (the "Note") pursuant to the terms
and conditions of a Third Amended and Restated Credit Agreement of even date
herewith (the "Credit Agreement").
NOW, THEREFORE, in consideration of the foregoing, the Borrower and the
Lender agree as follows:
FOR VALUE RECEIVED, the undersigned, COMPUTER LEARNING CENTERS,
INC., a Delaware corporation, hereby unconditionally promises to pay on the
Revolving Credit Termination Date, to the order of FIRST UNION NATIONAL BANK,
successor-by-merger to CoreStates Bank, N.A. (the "Lender"), at the office of
the Lender at 0000 Xxxxx Xxxxxx Xxxx, XxXxxx, Xxxxxxxx 00000, in lawful money of
the United States of America and in immediately available funds, the principal
amount of the lesser of (a) Two Million Dollars ($2,000,000), or (b) the
aggregate unpaid principal amount of all Revolving Credit Loans made by the
Lender to the undersigned pursuant to the Credit Agreement. The Credit Agreement
is incorporated into and made a part of this Note. Capitalized terms
hereinbefore or hereinafter used without definition shall have the meanings
assigned to such terms in the Credit Agreement.
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The undersigned further agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time from the
date hereof until and after such amount shall become due and payable (whether at
stated maturity, by demand, by acceleration or otherwise) on the dates and at
the applicable rates per annum as provided in Subsections 2.13 and 2.14 of the
Credit Agreement; provided that all accrued and unpaid interest shall be payable
in full on the Revolving Credit Termination Date.
The date and amount of each Revolving Credit Loan made by the
Lender, and the date and amount of each payment or prepayment of principal
thereof, as reflected on the Lender's books and records with respect to the
Revolving Credit Note and this Note, shall constitute prima facie evidence,
absent manifest error, of the accuracy of the information so reflected.
If any payment under this Note becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon the occurrence of any one or more Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
The Borrower duly constitutes and appoints Xxxxxxx X. Xxxxxxx,
X. Xxxxx Xxxxxxxxx (each of whom is an officer of the Lender), and the Lender
through an officer duly authorized by the Lender (any of the foregoing may act)
as the true and lawful attorneys-in-fact for it, in its name, place and stead,
and upon the occurrence of an Event of Default, to confess judgment against it,
in favor of the Lender, before the Clerk of the Circuit Court for Fairfax
County, Virginia, in accordance with 1950 Code of Virginia, Section 8.01-431 et
seq, and any successor statute, for all amounts owed with respect to the
Obligations under and pursuant to this Note including, without limitation, all
costs of collection, attorneys' fees in an amount equal to 15% of the
Obligations then outstanding (which shall be deemed reasonable attorneys' fees
for the purposes of this paragraph), and court costs, hereby ratifying and
confirming the acts of said attorney-in-fact as if done by itself. Upon request
of the Lender, the Borrower will execute an amendment or other agreement
substituting attorneys-in-fact appointed to act for the Borrower hereunder.
Except as expressly provided herein and in the Credit
Agreement, the undersigned hereby waives presentment, demand, protest, notice of
protest and all other notices of any kind.
THE LENDER, BY ITS ACCEPTANCE HEREOF, AND THE UNDERSIGNED EACH
AGREES THAT ANY ACTION, SUIT OR PROCEEDING INVOLVING ANY CLAIM, COUNTERCLAIM OR
CROSS-CLAIM ARISING OUT OF OR IN ANY WAY RELATING, DIRECTLY OR INDIRECTLY, TO
THIS NOTE, OR ANY LIABILITIES,
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RIGHTS OR INTERESTS OF THE UNDERSIGNED OR THE LENDER ARISING OUT OF OR IN ANY
WAY RELATING, DIRECTLY OR INDIRECTLY, TO THIS NOTE, SHALL BE TRIED BY A COURT
AND NOT BY A JURY. THE LENDER, BY ITS ACCEPTANCE HEREOF, AND THE UNDERSIGNED
EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR
PROCEEDING, WITH THE UNDERSTANDING AND AGREEMENT THAT THIS WAIVER CONSTITUTES A
WAIVER OF TRIAL BY JURY OF ALL CLAIMS, COUNTERCLAIMS AND CROSS-CLAIMS AGAINST
ALL PARTIES TO SUCH ACTIONS, SUITS OR PROCEEDINGS, INCLUDING CLAIMS,
COUNTERCLAIMS AND CROSS-CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS NOTE,
THE CREDIT AGREEMENT OR THE OTHER CREDIT DOCUMENTS. THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY THE LENDER AND THE UNDERSIGNED, AND EACH OF
THE LENDER AND THE UNDERSIGNED ACKNOWLEDGES AND AGREES THAT THIS WAIVER OF TRIAL
BY JURY IS A MATERIAL ASPECT OF THE AGREEMENTS AMONG THEM AND THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON TO INDUCE THIS
WAIVER OF TRIAL BY JURY OR TO MODIFY, LIMIT OR NULLIFY ITS EFFECT.
This Note amends and restates in its entirety that certain
Third Amended and Restated Revolving Credit Note dated May 15, 2000, in the
principal amount of $9,200,000.00 executed by the Borrower in favor of the
Lender. The Lender and the Borrower intend that the execution and delivery of
this Note shall not constitute or be construed to operate as a new indebtedness
of the Borrower, but the terms of the indebtedness of the Borrower pursuant to
the Revolving Credit Note shall be modified in accordance herewith.
This Note shall be governed by, and construed and interpreted
in accordance with, the internal laws of the Commonwealth of Virginia, exclusive
of principles of conflicts of laws.
IN WITNESS WHEREOF, the undersigned has duly executed, or
caused to be duly executed, this Note under sale the day and year first above
written.
ATTEST/WITNESS: COMPUTER LEARNING CENTERS, INC.
[SIG] By: /S/ XXXX X. XXXXX
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Xxxx X. Xxxxx
President and Chief Executive Officer
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COMMONWEALTH OF VIRGINIA, COUNTY OF PRINCE XXXXXXX, to wit:
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I HEREBY CERTIFY, that on this 19th day of December, 2000, before me,
the undersigned Notary Public, personally appeared Xxxx X. Xxxxx, who
acknowledged himself to be the President of Computer Learning Centers, Inc.,
known to me (or satisfactorily proven) to be the person who executed the
foregoing instrument and acknowledged that he, being authorized so to do,
executed the foregoing instrument on behalf of Computer Learning Centers, Inc.,
for the purposes therein contained.
WITNESS my hand and Notarial Seal.
/s/ XXXXXXX XXXXXX
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Notary Public
My Commission Expires: JUNE 30, 2004
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The Lender hereby accepts this Fourth Amended and Restated Revolving
Credit Note and agrees to the restatement of the terms of the Revolving Credit
Note as set forth in this Fourth Amended and Restated Revolving Credit Note.
ATTEST/WITNESS: FIRST UNION NATIONAL BANK
By: (SEAL)
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X. Xxxxx Xxxxxxxxx, Vice President
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