Exhibit 10.22
TERM NOTE
$6,000,000 New York, New York
As of January 31, 2002
A. GENERAL; TERMS OF PAYMENT
1. COMVERGE TECHNOLOGIES, INC., a Delaware corporation (the"Borrower"),
promises to pay to the order of BANK LEUMI USA (the "Bank"), at its offices at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as may be
desiguated by the holder hereof in writing, in immediately available funds, the
principal sum of Six Million ($6,000,000) Dollars on February 1, 2003, or sooner
as provided in the Credit Agreement (as hereinafter defined).
This note is the Note referred to in that certain Credit Agreement between
the Borrower and the Bank, dated as of February 7, 2000, as amended by a letter
agreement dated as of even date herewith, and as such agreement may be further
amended from time to time (the "Credit Agreement"), and is subject to prepayment
and its maturity is subject to acceleration upon the terms contained in the
Credit Agreement, Capitalized terms used herein shall be defined as in the
Credit Agreement.
The Borrower will pay interest on the unpaid principal amount of the Term
Loan from time to time outstanding, computed on the basis of a 360-day year. The
charging of interest on the basis of a 360-day year results in the payment of
more interest than would be required if interest were charged on the actual
number of days in the year. Interest shall be at the rate determined in the
Credit Agreement and be payable as is therein provided. In no event shall
interest exceed the maximum legal rate permitted for the Borrower.
2. MANNER OF PAYMENT. All payments by the Borrower on account of principal,
interest or fees hereunder shall be made in lawful money of the United States of
America, in immediately available funds. The Borrower authorizes (but shall not
require) the Bank to debit any account maintained by the Borrower with the Bank,
at any date on which a payment is due under this Note, in an amount equal to any
unpaid portion of such payment. If any payment of principal or interest becomes
due on a day on which the Bank is closed (as required or permitted by law or
otherwise), such payment shall be made not later than the next succeeding
business day, and such extension shall be included in computing interest in
connection with such payment.
B. DEFAULT
Upon the occurrence of an Event of Default, as defined in the Credit
Agreement, the Bank may declare the entire unpaid principal amount of this Note
and all interest and fees accrued and unpaid hereon to be forthwith due and
payable, without presentment, demand, protestor notice of any kind, all of which
are hereby expressly waived by the Borrower.
C. MISCELLANEOUS
1. NO WAVIER: RIGHTS AND REMEDIES CUMULATIVE. No failure on the part of the
Bank to exercise, and no delay in exercising any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise by the Bank of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The rights and remedies herein provided are cumulative and
not exclusive of any remedies or rights provided by law or by any other
agreement between the Borrower and the Bank.
2. COSTS AND EXPENSES. The Borrower shall reimburse the Bank for all costs
and expenses incurred by it and shall pay the reasonable fees and disbursements
of counsel to the Bank in connection with the enforcement of the Bank's rights
hereunder.
3. AMENDMENTS. No amendment, modification or waiver of any provision of
this Note nor consent to any departure by the Borrower therefrom shall be
effective unless the same shall be in writing and signed by the Bank and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
4. CONSTRUCTION. This Note shall be governed by the laws of the State of
New York, without giving effect to its choice of law principles.
5. SUCCESSORS AND ASSIGNS This Note shall be binding upon the Borrower and
its successors and assigns, and the terms hereof shall inure to the benefit of
the Bank and its successors and assigns, including subsequent holders hereof.
6. SEVERABILITY. The provisions of this Note are severable, and if any
provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforccability shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Note in any jurisdiction.
7. RESTATEMENT. This Note amends and restated the Term Note, dated as of
February 7, 2000, heretofore made and delivered by the Borrower to the Bank.
8. WAIVER OF NOTICE; SET-OFF. The Borrower hereby waives presentment,
demand for payment, notice of protest and all other demands in connection with
the delivery, acceptance, performance, default or enforcement of this Note. The
balance of every account
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of the Borrower with, and each claim of the Borrower against, the Bank existing
from time to time shall be subject to a lien and subject to be set-off against
any and all liabilities of the Borrower to the Bank, including those hereunder.
9. WAIVER OF TRIAL BY JURY. THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH OR ARISING OUT OF
THIS NOTE OR ANY AGREEMENT, INSTRUMENT, DOCUMENT OR GUARANTEE DELIVERED PURSUANT
HERETO OR PURSUANT TO THE CREDIT AGREEMENT, OR THE VALIDITY, PROTECTION,
INTERPRETATION, ADMINISTRATION, COLLECTION OR ENFORCEMENT HEREOF OR THEREOF OR
ANY OTHER CLAIM OR DISPUTE HEREUNDER OR THEREUNDER.
10. JURISDICTION, SERVICE OF PROCESS. THE BORROWER HEREBY IRREVOCABLY
CONSENTS TO THE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK FOR
THE COUNTY OF NEW YORK AND THE UNITED STATE DISTRICT FOR THE SOUTHERN DISTRICT
OF NEW YORK IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE OR ANY DOCUMENT, INSTRUMENT OR GUARANTEE DELIVERED
PURSUANT HERETO OR PURSUANT TO THE AGREEMENT. IN ANY SUCH LITIGATION, THE
BORROWER WAIVES PERSONAL SERVICE OF A SUMMONS, COMPLAINT OR OTHER PROCESS AND
AGREES THAT THE SERVICE THEREOF MAY BE MADE IN ANY OTHER MANNER PERMITTED BY THE
RULES OF EITHER OF SAID COURTS.
COMVERGE TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chief Executive Officer
00 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, Xxx Xxxx 00000
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