EXHIBIT 10-1
SECURED TERM NOTE
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$250,000.00 April 10, 1997
Boston, Massachusetts
For value received, ASA International Ltd., a Delaware corporation, with a
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx, 00000
(the "Borrower"), promises to pay to Economic Stabilization Trust with a
principal place of business at The Schrafft Center, 000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Lender") or order, at said place of business
or at such other place as the holder hereof may designate, the principal sum of
Two Hundred Fifty Thousand ($250,000) Dollars in lawful money of the United
States of America without setoff, deduction or counterclaim.
Payments under this Note shall be made as follows:
(1) Commencing June 1, 1997 continuing on the first day of each calendar
month thereafter until the Maturity Date, the Borrower shall make monthly
payments of interest on the aggregate principal balance outstanding hereunder at
the Prime Rate plus three one-half (3.5%) percent per annum. Interest shall be
calculated on the basis of actual days elapsed on a 365-day year and shall be
payable monthly in arrears.
(2) Commencing November 1, 1997, and continuing on the first day of each
calendar month thereafter until April 1, 2000, the Borrower shall make
twenty-nine (29) consecutive monthly payments of principal, each in the amount
of Eight Thousand Three Hundred Thirty Three and 33/00 ($8,333.33) Dollars.
(3) On May 1, 2000 (the "Maturity Date"), the Borrower shall make one final
payment of all outstanding principal and interest, as well as any unpaid costs
and expenses incurred in connection with the collection of this Note.
"Prime Rate" shall mean the rate as publicly announced by The First
National Bank of Boston from time to time as its Prime Rate, or, as the case may
be, the base, reference or other rate then designated by The First National Bank
of Boston for general commercial loan reference purposes, it being understood
that such a rate is a reference rate, not necessarily the lowest, established
from time to time which serves as the basis upon which effective interest rates
are calculated for loans making reference thereto. The effective interest rate
applicable to the Borrower's loan shall be adjusted on the first day of each
calendar quarter. If such rate is not available, then Lender shall elect another
comparable measure of such interest rate.
Any payments received by the Lender on account of this Note prior to
acceleration shall be applied first, to any costs, expenses, or charges then
owed to the Lender by the Borrower, second, to accrued and unpaid interest, and
third, to the unpaid principal balance hereof. Any payments so received after
acceleration shall be applied in such manner as the Lender may determine.
At the option of the holder, this Note shall become immediately due and
payable without notice or demand upon the occurrence at any time of any events
of default as defined in that certain Loan and Security Agreement of even date
between Borrower and Lender (the "Loan Agreement").
The Borrower agrees to pay all of Xxxxxx's expenses incurred in connection
with enforcing or seeking payment on this Note and realizing on the collateral
for this Note including all costs of collection, and reasonable fees of
attorneys. Prior to acceleration of the amounts due under this Note, the
Borrower shall also pay to the Lender a late charge in the amount of Twenty-Five
($25.00) Dollars for any payment due and unpaid five (5) days from the due date
thereof. After an event of default or acceleration of the amounts due under this
Note, Borrower shall also pay to the Lender interest on the amounts not paid at
a default rate per annum equal to the Prime Rate plus four (4%) percent per
annum; provided, however, that in the event that Lender charges a default rate
of interest after an event of default or acceleration hereunder, the Borrower
shall not incur a late charge in addition thereto.
The Borrower shall be entitled to prepay the entire outstanding balance of
this Note in whole or in part, at any time during the term of this Note without
penalty. Any such prepayment shall be credited first to costs, expenses or
charges then owed by Borrower to Lender, second to the payment of accrued
interest through the date of the prepayment, and then to unpaid installments in
the inverse order of their maturity.
The Borrower shall indemnify, defend and hold the Lender harmless against
any claim brought or threatened against the Lender by the Borrower, or by any
other persons (as well as from reasonable attorneys' fees and expenses in
connection therewith) on account of the Lender's relationship with the Borrower
(each of which may be defended, compromised, settled or pursued by the Lender
with counsel of the Lender's selection, but at the expense of the Borrower and
any endorser or guarantor hereof), unless such claim has been determined by a
court of competent jurisdiction to have arisen as a consequence of Xxxxxx's
gross negligence or willful misconduct.
Subject to the rights of secured creditors having a prior lien thereon, any
and all deposits or other sums at any time credited by or due the Borrower from
Lender or any of its banking or lending affiliates, or any lender acting as a
participant under any loan arrangement between the Lender and the Borrower, any
cash, securities, instruments or other property of the undersigned in the
possession of Lender, or any of its banking or lending affiliates, or any lender
acting as a participant under any loan arrangement between the Lender and the
Borrower, whether for safekeeping or otherwise, or in transit to or from Lender
or any of its banking lending affiliates or any such participant, or in the
possession of any third party acting on Xxxxxx's behalf (regardless of the
reason Xxxxxx had received same or whether Lender has conditionally released the
same) shall at all times constitute security for all of the liabilities and
obligations of the undersigned to Lender and may be applied or set off against
such liabilities and obligations of the undersigned to Lender at any time,
whether or not such are then due, whether or not demand has been made and
whether or not other collateral is then available to Lender.
The liabilities of the Borrower and any endorser or guarantor of this Note
are joint and several; provided, however, the release by Lender or the Borrower
or any one or more endorser or guarantor shall not release any other person
obligated on account of this Note. Neither the Borrower nor any endorser or
guarantor of this Note may seek contribution from any other person also
obligated hereunder unless and until all liabilities, obligations, and
indebtedness to Lender of the entity or person from whom contribution is sought
have been satisfied in full.
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of any other right of such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. The
Borrower and every endorser or guarantor of this Note regardless of the time,
order or place of signing waives presentment, demand, protest, and notices of
every kind and assents to any one or more extensions or postponements of the
time of payment or any other indulgences, to any substitutions, exchanges or
releases of collateral if at any time there be available to the holder
collateral for this Note, and to the additions or releases of any other parties
or persons primarily or secondarily liable.
The Borrower and each endorser and guarantor hereof each authorizes the
Lender to complete this Note if delivered incomplete in any respect and each
acknowledges that the holder's record of all payments, interest, assessments,
and related costs, charges and expenses relating to this Note shall, absent
manifest error, be conclusive.
The Borrower represents to Lender that the proceeds of this Note will not
be used for personal, family or household purposes.
This Note is delivered to the Lender at its offices in Massachusetts, shall
be governed by the laws of The Commonwealth of Massachusetts, and shall take
effect as a sealed instrument. The Borrower submits to the jurisdiction of the
courts of The Commonwealth of Massachusetts for all purposes with respect to
this Note, any collateral given to secure its liabilities, obligations, and
indebtedness to the Lender, and its relationship with the Lender.
THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND AFTER AN
OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, WAIVES ANY AND ALL RIGHTS TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS NOTE, THE
OBLIGATIONS HEREUNDER, AND ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS
EXECUTED IN CONNECTION HEREWITH.
Witness: BORROWER:
ASA INTERNATIONAL LTD.
By: /s/ Xxxxxxxx X. XxXxxxxx
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Xxxxxxxx X. XxXxxxxx, Controller
and Vice President
