FIVE YEAR ADJUSTABLE TERM NOTE
$1,659,000.00 New Britain, Connecticut March 5, 2004
For value received, the undersigned APEX MACHINE TOOL COMPANY, INC., a
Connecticut corporation and EDAC TECHNOLOGIES CORPORATION, a Wisconsin
corporation, with an address of 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx
(the "Borrower"), jointly and severally promise to pay to the order of
BANKNORTH, N.A., a national banking association with an address of 000 Xxxx Xxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxxx (together with its successors and assigns, the
"Bank"), the principal amount of ONE MILLION SIX HUNDRED FIFTY NINE THOUSAND
DOLLARS AND ZERO CENTS ($1,659,000.00) on or before April 1, 2014 (the "Maturity
Date"), as set forth below, together with interest from the date hereof on the
unpaid principal balance from time to time outstanding until paid in full. The
Borrower shall make a payment of accrued interest on the outstanding principal
balance on April 1, 2004. Thereafter, the Borrower shall pay consecutive monthly
installments of principal and interest, as follows: $12,451.87 on May 1, 2004,
and the same amount (except the last installment which shall be the unpaid
balance) on the 1st day of each month thereafter. The aggregate principal
balance outstanding shall initially bear interest thereon at a per annum rate
equal to Six and Forty-Nine One Hundredths (6.49%) Percent. The interest rate on
the aggregate principal balance shall change on April 1, 2009 ("Change Date") to
Two and Seventy-Five One Hundredths (2.75%) Percent above the Five Year Federal
Home Loan Bank of Boston Amortizing Advance Rate established on said Change
Date. On said Change Date, each monthly installment due and payable shall be
recalculated (increased or reduced) to amortize the outstanding principal
balance at such time in substantially equal payments over the remaining term of
the twenty (20) year amortization period commencing on the date of this Note at
the adjusted interest rate.
Principal and interest shall be payable at the Bank's main office or at
such other place as the Bank may designate in writing in immediately available
funds in lawful money of the United States of America without set-off, deduction
or counterclaim. Interest shall be calculated on the basis of actual number of
days elapsed in a 360-day year.
The Borrower may prepay this Note at any time, provided, however, that at
the time of any full or partial prepayment, the Borrower shall pay the Bank a
"Yield Maintenance Fee" in an amount computed as follows:
The current cost of funds, specifically the bond equivalent yield for United
States Treasury securities (bills on a discounted basis shall be converted to a
bond equivalent yield) with a maturity date closest to the last day of the
interest period in effect at the time of prepayment, shall be subtracted from
the above stated interest rate, or default rate if applicable. If the result is
zero or a negative number, there shall be no Yield Maintenance Fee due and
payable. If the result is a positive number, then the resulting percentage shall
be multiplied by the scheduled outstanding principal balance for each remaining
monthly period of the interest rate period in effect at the time of prepayment.
Each resulting amount shall be divided by 360 and multiplied by the number of
days in the monthly period. Said amounts shall be reduced to present values
calculated by using the above referenced current cost of funds divided by 12 and
the remaining term of the interest rate in effect at the time of prepayment in
months. The resulting sum of
present value amounts shall be the yield maintenance fee due to the Bank upon
prepayment of the principal of this Note plus any accrued interest due as of the
prepayment date.
Unless Bank expressly agrees otherwise, partial payments will not affect
the payment schedule required above.
In addition to the above stated Xxxxx Maintenance Fee, in the event any
outstanding sum due hereunder is refinanced with another financial institution
within two years of the date hereof, the Borrower shall pay the Bank a fee equal
to three percent of the principal balance being repaid.
At the option of the Bank, this Note shall become immediately due and
payable without notice or demand upon the occurrence at any time of any of the
following events of default (each, an "Event of Default"): (1) failure to pay in
full and within 15 days of the due date of any installment of principal and
interest or default of the Borrower or default of any other liability,
obligation or undertaking of the Borrower under any other loan document
delivered by the Borrower in connection with the loan evidenced by this Note;
(2) if any statement, representation or warranty heretofore, now or hereafter
made by the Borrower in connection with the loan evidenced by this Note or in
any supporting financial statement of the Borrower shall be determined by the
Bank to have been false in any material respect when made; (3) if the Borrower
is a corporation, trust, partnership or limited liability company, the
liquidation, termination or dissolution of any such organization, or the merger
or consolidation of such organization into another entity, or its ceasing to
carry on actively its present business or the appointment of a receiver for its
property; (4) the institution by or against (if not dismissed within 60 days)
the Borrower of any proceedings under the Bankruptcy Code 11 USC Section 101 et
seq. or any other law in which the Borrower is alleged to be insolvent or unable
to pay its debts as they mature, or the making by the Borrower of an assignment
for the benefit of creditors or the granting by the Borrower of a trust mortgage
for the benefit of creditors;
Any payments received by the Bank on account of this Note shall, at the
Bank's option, be applied first, to any costs, expenses or charges then owed to
the Bank by the Borrower; second, to accrued and unpaid interest; third to the
unpaid principal balance hereof; and the balance to escrows, if any.
Notwithstanding the foregoing, any payments received after the occurrence and
during the continuance of an Event of Default shall be applied in such manner as
the Bank may determine.
If pursuant to the terms of this Note, the Borrower is at any time
obligated to pay interest on the principal balance at a rate in excess of the
maximum interest rate permitted by applicable law for the loan evidenced by this
Note, the applicable interest rate shall be immediately reduced to such maximum
rate and all previous payments in excess of the maximum rate shall be deemed to
have been payments in reduction of principal and not on account of the interest
due hereunder.
THE BORROWER REPRESENTS TO THE BANK THAT THE PROCEEDS OF THIS NOTE WILL
NOT BE USED FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR FOR THE PURPOSE OF
PURCHASING OR CARRYING MARGIN STOCK OR MARGIN SECURITIES WITHIN THE MEANING OF
REGULATIONS U AND X OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, 12
C.F.R. PARTS 221 AND 224.
The Borrower grants to the Bank a continuing lien on and security interest
in any and all deposits or other sums at any time credited by or due from the
Bank to the Borrower as security for the full and punctual payment and
performance of all of the liabilities and obligations of the Borrower to the
Bank and such deposits and other sums may be applied or set off against such
liabilities and obligations of the Borrower to the Bank in the event of default
or an event with which the passage of time and/or with the giving of notice
would constitute a default.
No delay or omission on the part of the Bank in exercising any right
hereunder shall operate as a waiver of such right or of any other right of the
Bank, 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 waives presentment, demand, protest, notice of intent to accelerate,
notice of acceleration and all other notices of every kind in connection with
the delivery, acceptance, performance or enforcement of this Note 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 and waives
all recourse to suretyship and guarantor defenses generally, including any
defense based on impairment of collateral
Subject to the same limitations provided in the Hazardous Substance
Certificate and Indemnity Agreement of even date herewith, the Borrower shall
indemnify, defend and hold the Bank and its directors, officers, employees,
agents and attorneys harmless against any claim brought or threatened against
the Bank by the Borrower or by any other person (as well as from attorneys'
reasonable fees and expenses in connection therewith) on account of the Bank's
relationship with the Borrower (each of which may be defended, compromised,
settled or pursued by the Bank with counsel of the Bank's selection, but at the
expense of the Borrower), except for any claim arising out of the negligence or
intentional act of the Bank.
The Borrower agrees to pay, upon demand, costs of collection of all
amounts under this Note including, without limitation, principal and interest,
or in connection with the enforcement of, or realization on, any security for
this Note, including, without limitation, to the extent permitted by applicable
law, reasonable attorneys' fees (which may include allocable cost of the Bank's
internal Legal Department), and expenses. Upon the occurrence and during the
continuance of an Event of Default, interest shall accrue at a rate per annum
equal to the aggregate of 4.0% plus the rate provided for herein. If any payment
due under this Note is unpaid for 15 days or more, the Borrower shall pay, in
addition to any other sums due under this Note (and without limiting the Bank's
other remedies on account thereof), a late charge equal to 6.0% or $10.00,
whichever is greater, of such unpaid amount.
This Note shall be binding upon the Borrower and upon its successors,
assigns and legal representatives, and shall inure to the benefit of the Bank
and its successors, endorsees and assigns.
The liabilities of the Borrower are joint and several; provided, however,
the release by the Bank of the Borrower or any one of the Borrowers shall not
release any other person obligated on account of this Note. Each reference in
this Note to the Borrower is to such person individually and also to all such
persons jointly. No person obligated on account of this Note may seek
contribution from any other person also obligated, unless and until all
liabilities, obligations and indebtedness to the Bank of the person from whom
contribution is sought have been satisfied in
full. The release or compromise by the Bank of any collateral shall not release
any person obligated on account of this Note.
The Borrower authorizes the Bank to complete this Note if delivered
incomplete in any respect. A photographic or other reproduction of this Note may
be made by the Bank, and any such reproduction shall be admissible in evidence
with the same effect as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence, provided that the Bank
is in fact the holder of the Note.
This Note is delivered to the Bank at one of its office in Connecticut,
shall take effect as a sealed instrument and shall be governed by the internal
laws of the State of Connecticut.
The Borrower irrevocably submits to the nonexclusive jurisdiction of any
Federal or state court sitting in Connecticut, over any suit, action or
proceeding arising out of or relating to this Note. Each of the Borrower
irrevocably waives, to the fullest extent it may effectively do so under
applicable law, any objection it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding brought in any such court and any
claim that the same has been brought in an inconvenient forum. Each of the
Borrower hereby consents to any and all process which may be served in any such
suit, action or proceeding, (i) by mailing a copy thereof by registered and
certified mail, postage prepaid, return receipt requested, to the Borrower's
address shown below or as notified to the Bank and (ii) by serving the same upon
the Borrower(s) in any other manner otherwise permitted by law, and agrees that
such service shall in every respect be deemed effective service upon the
Borrower.
THE BORROWER AND THE BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A)
WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN
CONNECTION WITH THIS NOTE, ANY OF THE OBLIGATIONS OF THE BORROWER TO THE BANK,
AND ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS EXECUTED IN CONNECTION
HEREWITH AND (B) AGREES NOT TO SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CAN NOT BE, OR HAS NOT BEEN WAIVED. THE
BORROWER, EACH ENDORSER AND GUARANTOR AND THE BANK EACH CERTIFIES THAT NEITHER
THE BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT OF ANY SUCH
PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
THE BORROWER HEREBY REPRESENTS COVENANTS AND AGREES THAT THE PROCEEDS OF
THE LOAN(S) EVIDENCED BY THIS NOTE SHALL BE USED FOR GENERAL COMMERCIAL PURPOSES
AND THAT EACH SUCH LOAN IS A COMMERCIAL TRANSACTION AND DEFINED BY THE STATUTES
OF THE STATE OF CONNECTICUT. THE BORROWER AND EACH ENDORSER AND GUARANTOR HEREBY
EACH WAIVES ALL RIGHTS TO NOTICE AND PRIOR COURT HEARING OR COURT ORDER UNDER
CONNECTICUT GENERAL STATUTES, SECTION 52-278A ET. SEQ., AS AMENDED, OR UNDER ANY
OTHER STATE OR FEDERAL LAW WITH RESPECT TO ANY AND ALL PREJUDGMENT REMEDIES THE
BANK MAY
EMPLOY TO ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER. MORE SPECIFICALLY, THE
BORROWER ACKNOWLEDGES THAT THE BANK'S ATTORNEY MAY, PURSUANT TO CONNECTICUT
GENERAL STATUTES, SECTION 52-278F, ISSUE A WRIT FOR PREJUDGMENT REMEDY WITHOUT
SECURING A COURT ORDER. THE BORROWER ACKNOWLEDGES AND RESERVES ITS RIGHT TO
NOTICE AND A HEARING SUBSEQUENT TO THE ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY
BY THE BANK'S ATTORNEY, AND THE BANK ACKNOWLEDGES THE BORROWER'S RIGHT TO SAID
HEARING SUBSEQUENT TO THE ISSUANCE OF SAID WRIT. THE BORROWER FURTHER HEREBY
WAIVES ANY REQUIREMENT OR OBLIGATION OF THE BANK TO POST A BOND OR OTHER
SECURITY IN CONNECTION WITH ANY PREJUDGMENT REMEDY OBTAINED BY THE BANK AND
WAIVE ANY OBJECTIONS TO ANY PREJUDGMENT REMEDY OBTAINED BY THE BANK BASED ON ANY
OFFSETS, CLAIMS, DEFENSES OR COUNTERCLAIMS OF THE BORROWER OR ANY OTHER
OBLIGATED PARTY TO ANY ACTION BROUGHT BY THE BANK. THE BORROWER ACKNOWLEDGES AND
AGREES THAT ALL OF THE WAIVERS CONTAINED IN THIS SECTION HAVE BEEN MADE
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY, AND WITH THE ADVICE OF
ITS COUNSEL.
Executed as an instrument under seal as of March 5, 2004.
Apex Machine Tool Company, Inc.
By: /s/Xxxxx X. Purple
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Xxxxx X. Purple
Its Secretary, duly authorized
EDAC Technologies Corporation
By: /s/Xxxxx X. Purple
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Xxxxx X. Purple
Its Vice President-Finance, duly authorized
