Exhibit 10.5
FORM OF
TERM NOTE
$ Date:
FOR VALUE RECEIVED, the undersigned (hereinafter, together with their
successors in title and assigns, collectively, called the "Borrowers"), by this
promissory note (hereinafter, together with the Schedule annexed hereto, called
"this Note"), absolutely and unconditionally and jointly and severally promise
to pay to the order of __________________, a national banking association
organized under the laws of the United States of America (hereinafter, together
with its successors in title and assigns, called the "Bank"), the principal sum
of ____________________($______________) or, if less, the aggregate principal
outstanding amount of all fundings made under the Term Loan by the Bank pursuant
to the Loan Agreement (as hereinafter defined), and to pay interest on the
principal sum outstanding hereunder from time to time from the date hereof until
the said principal sum or the unpaid portion thereof shall have become due and
payable as hereinafter provided.
Capitalized terms used herein without definition shall have the meaning
set forth in the Loan Agreement.
The unpaid principal (not at the time overdue) under this Note shall
bear interest at the rate or rates from time to time in effect under the Loan
Agreement. Accrued interest on the unpaid principal under this Note shall be
payable on the dates specified in the Loan Agreement.
Subject to the prepayment provisions of the Loan Agreement, the entire
principal of this Note shall be payable by the Borrowers to the holder hereof in
twenty (20) consecutive quarter-annual installments of principal, with such
installments to be payable on the last day of each September, December, March
and June in each year, beginning September 30, 2000, and with the last of such
twenty (20) installments to be payable on ___________. While any principal
hereof remains unpaid, subject to the prepayment provisions of the Loan
Agreement, there shall become absolutely due and payable by the Borrowers
hereunder in succession, and the Borrowers hereby jointly and severally promise
to pay to the holder hereof, the twenty (20) such quarter-annual installments of
the principal of this Note. Subject to the prepayment provisions in the Loan
Agreement, the amount of each installment of principal payable by the Borrowers
is set forth in the table opposite the date on which such installment shall
become due and payable hereunder:
-1-
Installment Aggregate Amount
Payment Date of Payment
------------ ----------------
On _______, the date of the final maturity of this Note, there shall
become absolutely due and payable by the Borrowers hereunder, and the Borrowers
hereby jointly and severally promise to pay to the Bank, the balance (if any) of
the principal hereof then remaining unpaid, all of the unpaid interest accrued
hereon and all (if any) other amounts payable on or in respect of this Note or
the indebtedness evidenced hereby.
Each overdue amount (whether of principal, interest or otherwise)
payable on or in respect of this Note or the indebtedness evidenced hereby shall
(to the extent permitted by applicable law) bear interest at the rates and on
the terms provided by the Loan Agreement. The unpaid interest accrued on each
overdue amount in accordance with the foregoing terms of this paragraph shall
become and be absolutely and jointly and severally due and payable by the
Borrowers to the Bank on demand by the Administrative Agent. Interest on each
overdue amount will continue to accrue as provided by the foregoing terms of
this paragraph, and will (to the extent permitted by applicable law) be
compounded daily until the obligations of the Borrowers in respect of the
payment of such overdue amount shall be discharged (whether before or after
judgment).
Each payment of principal, interest or other sum payable on or in
respect of this Note or the indebtedness evidenced hereby shall be made by the
Borrowers directly to the Administrative Agent in dollars, for the account of
the Bank, at the address of the Administrative Agent set forth in the Loan
Agreement, on the due date of such payment, and in immediately available and
freely transferable funds. All payments on or in respect of this Note or the
indebtedness evidenced hereby shall be made without set-off
-2-
or counterclaim and free and clear of and without any deductions, withholdings,
restrictions or conditions of any nature.
This Note is made and delivered by the Borrowers to the Bank pursuant
to the Revolving Credit and Term Loan Agreement, dated as of June 29, 2000,
among (i) the Borrowers, (ii) the Banks, and (iii) the Administrative Agent
(hereinafter, as originally executed, and as now or hereafter varied or
supplemented or amended and restated, called the "Loan Agreement"), to which
reference is hereby made for a statement of the terms and conditions (to the
extent not set forth herein) under which the Loan evidenced hereby was made and
is to be repaid. This Note evidences the joint and several obligation of the
Borrowers (a) to repay the principal amount of the Bank's Commitment Percentage
of the Term Loan made by the Banks to the Borrowers pursuant to the Loan
Agreement; (b) to pay interest, as herein and therein provided, on the principal
amount hereof remaining unpaid from time to time; and (c) to pay other amounts
which may become due and payable hereunder or thereunder as herein and therein
provided. The payment of the principal of and the interest on this Note and the
payment of all (if any) other amounts as may become due and payable on or in
respect of this Note are secured by certain collateral, as evidenced by the
Security Documents. Reference is hereby made to the Loan Agreement (including
the EXHIBITS and SCHEDULES annexed thereto) and to the other Security Documents
for a complete statement of the terms thereof and for a description of such
collateral.
The Borrowers will have the right to prepay the unpaid principal of
this Note in full or in part upon the terms contained in the Loan Agreement. The
Borrowers will have an obligation to prepay principal of this Note from time to
time if and to the extent required under, and upon the terms contained in, the
Loan Agreement. Any partial payment of the indebtedness evidenced by this Note
shall be applied in accordance with the terms of the Loan Agreement. Any prepaid
principal of this Note may not be reborrowed.
Pursuant to and upon the terms contained in Section 7 of the Loan
Agreement, the entire unpaid principal of this Note, all of the interest accrued
on the unpaid principal of this Note and all (if any) other amounts payable on
or in respect of this Note or the indebtedness evidenced hereby may be declared
to be immediately due and payable, whereupon the entire unpaid principal of this
Note, all of the interest accrued on the unpaid principal of this Note and all
(if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby shall (if not already due and payable) forthwith become and be
due and payable to the Bank without presentment, demand, protest or any other
formalities of any kind, all of which are hereby expressly and irrevocably
waived by the Borrowers, excepting only for notice expressly provided for in the
Loan Agreement.
All computations of interest payable as provided in this Note shall be
made by the Administrative Agent in accordance with the terms of the Loan
Agreement. The interest
-3-
rate in effect from time to time shall be determined in accordance with the
terms of the Loan Agreement.
Should all or any part of the indebtedness represented by this Note be
collected by action at law, or in bankruptcy, insolvency, receivership or other
court proceedings, or should this Note be placed in the hands of attorneys for
collection after default, the Borrowers hereby promise to pay to the holder of
this Note, upon demand by the holder hereof at any time, in addition to
principal, interest and all (if any) other amounts payable on or in respect of
this Note or the indebtedness evidenced hereby, all court costs and reasonable
attorneys' fees and all other collection charges and expenses reasonably
incurred or sustained by the holder of this Note.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
Each of the Borrowers and every endorser and guarantor of this Note
hereby irrevocably waives notice of acceptance, presentment, demand, notice of
nonpayment, protest, notice of protest, suit and all other demands, notices and
other conditions precedent in connection with the delivery, acceptance,
performance, default, collection and/or enforcement of this Note or any
collateral or security therefor, except for notices expressly provided for in
the Loan Agreement or any other Loan Document, and assents to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
Each of the Borrowers hereby absolutely and irrevocably consents and
submits, for itself and its property, to the non-exclusive jurisdiction of the
courts of the Commonwealth of Massachusetts or of the United States of America
for the District of Massachusetts in connection with any actions or proceedings
brought against any Borrower by the holder hereof arising out of or relating to
this Note.
THE BORROWERS AND THE BANK MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO
ACCEPT THIS NOTE AND THE MAKE THE LOAN.
-4-
This Note is intended to take effect as a sealed instrument. This Note
and the obligations of the Borrowers hereunder shall be governed by and
interpreted and determined in accordance with the laws of the Commonwealth of
Massachusetts.
(Signatures on next page)
-5-
IN WITNESS WHEREOF, this TERM NOTE has been duly executed under seal by
the undersigned on the day and in the year first above written in Boston,
Massachusetts.
WITNESS: XXX-XXXX CORPORATION
____________________________ By:_______________________________
Name:
Title:
XXX-XXXX SERVICES, INC.
By:______________________________
Name:
Title:
INTIRION CORPORATION
By:______________________________
Name:
Title:
-6-
SCHEDULE TO TERM NOTE
DATE AMOUNT OF TYPE OF LOAN APPLICABLE PRIME INTEREST INTEREST AMOUNT PAID NOTATION
LOAN (PRIME RATE RATE MARGIN OR RATE* PERIOD** MADE BY
OR LIBOR) APPLICABLE LIBOR
MARGIN
------------------------------------------------------------------------------------------------------------------------
------------------------------
* For Prime Rate Loans, insert "Prime Rate plus Applicable Prime Rate Margin"
For LIBOR Loans, insert "Adjusted LIBOR Rate plus Applicable LIBOR Margin"
** For LIBOR Loans only
-7-
