PROMISSORY NOTE-EQUIPMENT
$850,000.00 September, 1988
Chicago, IL
FOR VALUE RECEIVED, the undersigned, XXXXXXXX TECHNOLOGIES OF MINNESOTA,
INC., a Minnesota corporation, and XXXXXXXX TECHNOLOGIES OF GEORGIA, INC., a
Georgia corporation (collectively, "Borrowers") promise to pay to the order of
XXXXXX FINANCIAL, INC. ("Lender") at its office, 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, XX 00000, or at such other place as the holder hereof may appoint, the
principal sum of (A) all unpaid costs and fees due under that certain Loan and
Security Agreement dated as of January 29, 1998, as amended by the First
Amendment to Loan and Security Agreement dated September ___, 1998
(collectively, the "Loan Agreement") between Xxxxxx and Borrowers, and (B) Eight
Hundred Fifty Thousand and no/100 Dollars ($850,000.00). This sum is payable on
the earlier of (A) the acceleration of the obligations pursuant to the terms of
this Note or pursuant to subsection 7.3 of the Loan Agreement, or (B) the
Termination Date; provided, that prior to such time, the principal of this Note
shall be payable in thirty-six (36) consecutive monthly installments of
principal plus interest at a rate per annum equal to the Base Rate plus 1.75%
(the "Interest Rate") until due or declared due, commencing October 1, 1998, and
continuing on the same day of each consecutive calendar month thereafter until
this Note is fully paid, with the first such monthly installments each in the
principal amount of Fourteen Thousand Six Hundred Sixty-Six and 67/100 Dollars
($14,666.67), plus accrued interest, and the final monthly installment in the
amount of the entire then outstanding principal balance hereunder, plus all
accrued and unpaid interest charges and other fees or other amounts hereunder or
under the Loan Agreement. After the occurrence and during the continuance of an
Event of Default, the obligations under this Note shall, at the option of
Lender, bear interest at a rate per annum equal to 3.0% plus the Interest Rate
(the "Default Rate").
"Base Rate" means a variable rate of interest per annum equal to the
higher of (a) the rate of interest from time to time published by the Board of
Governors of the Federal Reserve System as the "Bank Prime Loan" rate in Federal
Reserve Statistical Release H.15(519) entitled "Selected Interest Rates" or any
successor publication of the Federal Reserve System reporting the Bank Prime
Loan rate or its equivalent, or (b) for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the
immediately following business day by the Board of Governors of the Federal
Reserve System as the Federal Funds Rate in Federal Reserve Statistical Release
H.15(519) entitled "Selected Interest Rates" or any successor publication of the
Federal Reserve System reporting the Federal Funds Effective Rate or its
equivalent or, if such rate is not published for any business day, the average
of the quotations for such business day from three Federal funds brokers of
recognized standing selected by payee or any holder of this Note. In the event
the Board of Governors of the Federal Reserve System ceases to publish a Bank
Prime Loan rate or its equivalent, the term "Base Rate" shall mean a variable
rate of interest per annum equal to the highest of the "prime rate", "reference
rate", "base rate", or other similar rate announced from time to time by any of
the three largest banks located in New York City, New York (with the
understanding that any such rate may merely be a reference rate and
may not necessarily represent the lowest or best rate actually charged to any
customer by any such bank).
Interest will be computed on the basis of a 360 day year for the actual
number of days elapsed. All interest and other obligations of the undersigned
under this Note that are not paid when due shall be added to the principal
amount of this Note and thereafter shall bear interest at the applicable rate
specified in this Note.
To secure the payment of the principal and interest of this Note and all
renewals and extensions of the same or any part thereof and any and all other
sums, indebtedness and liabilities now or hereafter owing or to become owning
from the undersigned to the payee, or the holder hereof, howsoever created,
arising, evidenced or acquired by said payee or holder, whether direct or
contingent, the undersigned has granted and given to payee a general and
continuing lien and security interest in certain of its assets as listed and
described in the various financing agreements (collectively, the "Financing
Agreements") by and between the undersigned and payee, all as amended from time
to time, including, without limitation, the Loan Agreement (the "Loan
Agreement") to which reference is made for a statement of the nature and extent
of the security and protection afforded, the rights of the payee or holder
hereof and the rights and obligations of the undersigned, together with all
other and sundry grants and pledges of security heretofore and hereafter given
(collectively called the "Collateral"), with full power and authority to the
payee or holder to transfer, assign, pledge or replace the same in whole or in
part.
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to such terms in the Loan Agreement.
If the undersigned voluntarily prepays all or any portion of the
outstanding principal balance of this Note, the undersigned, at the time of
prepayment, shall pay the payee, as compensation for the costs of being prepared
to make funds available to the undersigned under this Note, and not as a
penalty, an amount determined by multiplying the applicable percentage set forth
below by the principal amount being prepaid, three percent (3%) upon prepayment
during the first Loan Year; two percent (2%) upon prepayment during the second
Loan Year; and one percent (1%) upon a prepayment during the third Loan Year.
In case of exchange of, or substitution for, or addition to the
Collateral, the provisions hereof shall extend to such exchanged, substituted,
or additional Collateral. Upon payment of this Note, the payee or holder may
nevertheless retain the Collateral hereby pledged to secure the payment of any
other portion of the Obligations, if any, for which the same is pledged. The
payee and every holder hereof are expressly released from any duty, obligation
or liability (in each case, if any): (a) to protect, collect, demand payment of,
protest or enforce the Collateral; (b) to take any action whatsoever in regard
to the Collateral or any part thereof; or (c) for any loss of or depreciation in
the value of the Collateral.
If this Note or any renewal or extension thereof, or any other
indebtedness or obligations secured hereby, or any installment of principal or
interest upon any of the foregoing shall not be
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paid when due, or if the undersigned defaults in the performance of any of the
terms or provisions of this Note, the Financing Agreements, any of the other
Loan Documents, or any other agreement with the payee or the holder of this
Note, the payee or holder may, without notice or demand, declare the entire
amount of this Note and all other indebtedness or liabilities of the undersigned
to the payee or h older to be immediately due and payable, proceed to collect
and enforce the same at one and proceed to enforce all rights and remedies
provided under the Loan Agreements or otherwise provided by law. Further, if the
undersigned defaults on any of its obligations hereunder or under the Loan
Agreement, then Lender may exercise any and all of its rights and remedies
against the undersigned under the Loan Agreement or applicable law.
The payee or holder shall not be required to look to the Collateral for
the payment of this Note, but may proceed against the undersigned in such manner
as it deems desirable. None of the rights or remedies of the payee or holder
hereunder or under any other Loan Document or under any other agreement are to
be deemed waived or affected by any failure or delay to exercise same. All
remedies conferred upon the payee or holder by this Note or any other remedies
may be exercised concurrently or consecutively at the option of the payee or
holder.
The undersigned and all endorsers and guarantors hereof hereby waive
presentment, demand for payment, notice of dishonor, notice of nonpayment,
protest and notice of protest, and all other notices and demands in connection
with the delivery, acceptance, performance, default or enforcement of this Note,
and agree that the liability of each of the undersigned shall be unconditional
without regard to the liability of any other party and shall not be affected by
any indulgence, extension of time, waiver, release of any party or collateral,
or other modification granted or consented to by payee or holder hereof.
This Note and the other Loan Documents embody the entire agreement among
the parties hereto and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the
subject matter hereof, and may not be contradicted or varied by evidence of
prior, contemporaneous, or subsequent oral agreements or discussions of the
undersigned and payee.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
THE UNDERSIGNED HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE COUNTY OF COOK STATE OF ILLINOIS AND
IRREVOCABLY AGREES THAT, SUBJECT TO PAYEE'S ELECTION, ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS NOTE, OR THE OTHER LOAN DOCUMENTS SHALL BE
LITIGATED IN SUCH COURTS. THE UNDERSIGNED EXPRESSLY SUBMITS AND CONSENTS TO THE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS. THE UNDERSIGNED HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE
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MADE UPON THE UNDERSIGNED BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, ADDRESSED TO THE UNDERSIGNED AT THE ADDRESS SET FORTH AS ITS
PRINCIPAL PLACE OF BUSINESS ADDRESS IN THE LOAN AGREEMENT AND SERVICE SO MADE
SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
THE UNDERSIGNED WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS NOTE AND THE OTHER LOAN DOCUMENTS. THE
UNDERSIGNED ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE
UNDERSIGNED AND PAYEE TO ENTER INTO A BUSINESS RELATIONSHIP, THAT THE
UNDERSIGNED AND PAYEE HAVE RELIED ON THE WAIVER IN ENTERING INTO AND MAKING THE
LOANS EVIDENCED UNDER THIS NOTE AND IN ENTERING INTO THE OTHER LOAN DOCUMENTS,
AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE
DEALINGS. THE UNDERSIGNED FURTHER WARRANTS AND REPRESENTS THAT THE UNDERSIGNED
HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT THE UNDERSIGNED
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
XXXXXXXX TECHNOLOGIES OF MINNESOTA, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X. Xxxxx
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Its: Executive Vice President
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XXXXXXXX TECHNOLOGIES OF GEORGIA, INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Its: Executive Vice President
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