EXHIBIT 10.5
REVOLVER NOTE
$3,000,000.00 October __, 1996
FOR VALUE RECEIVED, XXXXXXX EDUCATION GROUP, INC., f/k/a Xxxxxxx
Medical Corp., a New Jersey corporation ("Borrower"), promises to pay to the
order of
XXXXXXX BANK, N.A.
a national banking corporation ("Lender") (successor by merger and name change
to Xxxxxxx Bank of South Florida, N.A.), the principal sum of
THREE MILLION DOLLARS
and the Borrower further promises to pay to the Lender interest monthly, on the
___ day of each month, until repaid in full, on the principal amount evidenced
hereby and from time to time outstanding at a rate per annum determined in
accordance with the Credit Agreement (as defined below). The rate of interest to
be applied and the amount of interest to be paid on the daily outstanding
balance of principal evidenced hereby shall be calculated on an assumed year of
360 days for the number of days actually elapsed.
The Borrower agrees to pay the outstanding principal indebtedness
evidence by this note in full on April 14, 1999. All advances made hereunder by
the Lender to the Borrower and all payments made on account of principal hereof
shall be recorded by the Lender and, prior to transfer hereof, endorsed on the
grid attached hereto.
The Borrower further promises and agrees that:
1. This Note is executed pursuant to, and is entitled to the
benefits of, that certain Credit Agreement, dated as of April 11, 1996, as
amended by amendment dated August 14, 1996, and as amended by amendment of even
date herewith (collectively, the "Credit Agreement") among the Lender, the
Borrower and the Guarantor, the terms of which are incorporated herein by this
reference as if fully set forth herein. Provided no Event of Default has
occurred and is continuing, the Borrower may borrow, prepay and reborrow
provided the aggregate principal amount outstanding from time to time and at any
time does not exceed $3,000,000.00.
2. This Borrower shall be in default under the terms of this note
upon the occurrence and continuation of an Event of Default as defined and
described in the Credit Agreement.
3. At any time after the occurrence and continuation of any Event
of Default, the indebtedness evidenced by this note and/or any note(s) or other
obligation(s) which may be taken in
renewal, extension, substitution, or modification of all or any part of the
indebtedness evidenced thereby and all other Obligations of the Borrower to the
Lender, howsoever created and existing under the Credit Agreement, that certain
Term Note, dated April 11, 1996 from the Borrower to the Lender or otherwise,
shall immediately become due and payable without demand upon or notice to the
Borrower, and the Lender shall be entitled to exercise the other remedies set
forth in the Credit Agreement or as otherwise provided at law or in equity.
4. Upon the occurrence and during the continuance of any Event of
Default, the Lender is authorized, without further notice to the Borrower (the
giving of notice being expressly waived by the Borrower) to set off and apply
any indebtedness owing by the Lender to the Borrower against the indebtedness
evidenced by this note, although then contingent or unmatured. The Lender agrees
to notify the Borrower after any such setoff and application; provided, however,
the failure to give such notice shall not affect the validity of such setoff and
application. The rights of the Lender under this Paragraph 4 are in addition to
any other rights and remedies which the Lender may have.
5. The Lender may transfer this note and the transferee(s) shall
thereupon become vested with all the powers, rights, and obligations herein
given to the Lender with respect thereto; and the Lender shall thereafter be
forever relieved and fully discharged from any liability or responsibility in
the matter.
6. The Borrower hereby waives presentment for payment, demand,
notice of dishonor and protest and agrees that (i) any right of setoff securing
any indebtedness evidenced by this note may, from time to time, in whole or in
part, be exchanged or released, and any person liable on or with respect tot he
indebtedness evidenced by this note may be released -- all without notice to or
further reservations of rights against the Borrower, any indorser, surety or
guarantor and all without in any way affecting or releasing the liability of the
Borrower, any indorser, surety or guarantor; and (ii) none of the terms or
provisions of this note may be waived, altered, modified or amended except as
the Lender may consent thereto in writing.
7. In the event of any litigation involving this note, the
prevailing party shall be entitled to collect reasonable attorneys' fees,
out-of-pocket expenses, and court costs. As used in this note, the term,
"attorneys' fees", shall mean reasonable charges and expenses for legal services
at the trial and/or appellate level and/or in pre- and post-judgment or
bankruptcy proceedings.
2
8. Both principal and interest of this note shall be payable in
lawful currency of the United States of America to the Lender at 000 Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxx 00000 or at such other place or to such other person as
may be designated in writing by the Lender, in immediately available (same day)
funds without deduction for or on account of any present or future taxes levied
or imposed on this note, the proceeds hereof, or on the Borrower or holder
hereof by any government, or any instrumentality, authority or political
subdivision thereof. The Borrower agrees, upon the request of the Lender, to pay
all such taxes (other than taxes on or measured by net income of the holder
hereof) in addition to the principal and interest evidenced by this note.
9. Any installment of principal and/or interest evidenced by this
note which is not paid on the day when such payment is scheduled to be made,
regardless of whether or not the Lender has accelerated payment of any or all
sums outstanding under this note, shall bear interest from the day when due
(including any grace period) until said amount is paid in full, payable on
demand, at a rate per annum equal at all times to the sum of (i) the rate
otherwise applicable hereunder plus (ii) four percent (4%).
10. This note shall be deemed to have been made under and shall be
governed by the laws of the State of Florida in all respects [except as to
interest rates and other terms of lending which, by virtue of a federal
preemption or, at the election of the Lender, are or may be governed by the laws
of the United States], including matters of construction, validity, and
performance. If any provision of this note shall be deemed unenforceable under
applicable law, such provision shall be ineffective, but only to the extent of
such unenforceability, without invalidating the remainder of such provision or
the remaining provisions of this note. If more than one person signs this note
as a maker, each shall be jointly and severally liable hereunder. All of the
terms and provisions of this note shall be applicable to and be binding upon
each and every maker, indorser, surety, guarantor, all other persons who are or
may become liable for the payment hereof and their heirs, personal
representatives, successors or assigns.
11. THE BORROWER, AND THE LENDER IN ACCEPTING DELIVERY OF THIS NOTE,
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE
TO TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED ON THIS NOTE OR THE CREDIT
AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE CREDIT
AGREEMENT OR ANY OTHER AGREEMENT SIGNED OR CONTEMPLATED TO BE SIGNED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY OR THE DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS
3
THEREOF. THE INCLUDING OF THIS PROVISION IS A MATERIAL INDUCEMENT TO THE
LENDER TO EXTEND CREDIT TO THE BORROWER.
XXXXXXX EDUCATION GROUP, INC.
By:________________________
Title:_____________________
STATE OF _______ )
)SS.
COUNTY OF ______ )
The foregoing Revolver Note was acknowledged was before me this
_____ day of October, 1996, by _______________________, as
______________________________ of XXXXXXX EDUCATION GROUP, INC., a New
Jersey____________ corporation. He/She:
______ is personally known to me, or
______ produced _________________ as identification.
------------------------------
NOTARY PUBLIC
My Commission Expires: Printed Name of Notary:
4
