TERM LOAN C NOTE
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Executed as of the 25th day of March, 2003. No.___________
Amount $2,500,000
FOR VALUE RECEIVED, the Undersigned (jointly and severally, if more
than one) promises to pay to the order of LASALLE BUSINESS CREDIT, LLC, a
Delaware limited liability company (successor-by-merger to LaSalle Business
Credit, Inc.), as agent for Standard Federal Bank National Association
(hereinafter, together with any holder hereof, called "Lender"), at the office
of Lender, located at 0000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx XX 00000, the
principal sum of Two Million Five Hundred Thousand Dollars ($2,500,000). The
Undersigned (jointly and severally, if more than one) further promises to pay
interest on the outstanding principal amount hereof at the rates provided in the
Loan Agreement from the date hereof until payment in full hereof.
This Term Loan C Note ("Note") evidences Undersigned's joint and
several, absolute and unconditional obligation to repay Term Loan C and is
issued in connection with and was delivered pursuant to that certain Amendment
No. 1 to Loan and Security Agreement, dated as of the date hereof (the
"Amendment"), among Lender and the Undersigned which amends that certain Loan
and Security Agreement, dated as of August 14, 2002, among Lender and the
Undersigned, as it has been and may hereafter be amended, modified, restated or
replaced from time to time (including, without limitation, by the Amendment),
together with all exhibits thereto, among Lender and the Undersigned (the "Loan
Agreement"), and is entitled to all of the benefits and security of the Loan
Agreement. All of the terms, covenants and conditions of the Loan Agreement and
the Other Agreements are hereby made a part of this Note and are deemed
incorporated herein in full. All terms which are capitalized and used herein
(which are not otherwise defined herein) shall have the meaning ascribed to such
term in the Loan Agreement.
Principal xxxxxxxxx and accrued interest hereon shall be payable
pursuant to the terms of the Loan Agreement. Notwithstanding the foregoing, the
entire unpaid principal balance and accrued interest on this Note shall be due
and payable immediately upon termination of the Loan Agreement pursuant to
Section 10 thereof or upon acceleration of the Liabilities pursuant to Section
16 thereof.
The Undersigned (and each one of them, if more than one) hereby
authorizes Xxxxxx to charge any account of the Undersigned (and each one of
them, if more than one) for all sums due hereunder. If payment hereunder becomes
due and payable on a day other than a Business Day, the due date thereof shall
be extended to the next succeeding Business Day, and interest shall be payable
thereon at the rate specified during such extension.
Credit shall be given for payments made in the manner and at the times
provided in the Loan Agreement. It is the intent of the parties that the rate of
interest and other charges to the Undersigned under this Note shall be lawful;
therefore, if for any reason the interest or other charges payable hereunder are
found by a court of competent jurisdiction, in a final determination, to exceed
the limit which Lender may lawfully charge the Undersigned, then the obligation
to pay interest or other charges shall automatically be reduced to such limit
and, if any amount in excess of such limit shall have been paid, then such
amount shall be refunded to the Undersigned.
The principal and all accrued interest hereunder may be prepaid by the
Undersigned, in part or in full, at any time, subject to any applicable terms
and conditions contained in the Loan Agreement.
Upon the occurrence and during the existence of an Event of Default,
Lender shall have all of the rights and remedies set forth in the Loan Agreement
and the Other Agreements.
The Undersigned (and each one of them, if more than one) waives the
benefit of any law that would otherwise restrict or limit Lender in the exercise
of its right, which is hereby acknowledged, to set-off against the Liabilities,
without notice and at any time hereafter, any indebtedness matured or unmatured
owing from Lender to the Undersigned (or any one of them). The Undersigned (and
each one of them, if more than one) waives every defense, counterclaim or setoff
which the Undersigned (or any one of them) may now have or hereafter may have to
any action by Lender in enforcing this Note and/or any of the other Liabilities,
or in enforcing Lender's rights in the Collateral and ratifies and confirms
whatever Lender may do pursuant to and in accordance the terms hereof and of the
Loan Agreement and with respect to the Collateral and agrees that Xxxxxx shall
not be liable for any error in judgment or mistakes of fact or law (excluding
any error in judgment or mistakes of fact or law arising from the gross
negligence or willful misconduct by Xxxxxx as determined by a final
non-appealable judgment of a court of competent jurisdiction).
Time is of the essence with respect to the obligations of the
Undersigned under this Note. The Undersigned, any other Person liable with
respect to the Liabilities and any and all endorsers and accommodation parties,
and each one of them, if more than one, waive any and all presentment, demand,
notice of dishonor, protest, and all other notices and demands in connection
with the enforcement of Xxxxxx's rights hereunder.
THIS NOTE SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA AS TO INTERPRETATION, ENFORCEMENT, VALIDITY,
CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS, INCLUDING, WITHOUT LIMITATION,
THE LEGALITY OF THE INTEREST RATE AND OTHER CHARGES, and shall be binding upon
the Undersigned (and each one of them, if more than one) and the Undersigned's
successors and permitted assigns (and each of them, if more than one). The
Undersigned may not assign any of their rights or obligations and liabilities
under this Note. If this Note contains any blanks when executed by the
Undersigned (or any one of them, if more than one), the Lender is hereby
authorized, without notice to the Undersigned (or any one of them, if more than
one) to complete any such blanks according to the terms upon which the loan or
loans evidenced by this Note were granted. Wherever possible, each provision of
this Note shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be prohibited by or be
invalid under such law, such provision shall be severable, and be ineffective to
the extent of such prohibition or invalidity, without invalidating the remaining
provisions of this Note. If more than one Person shall execute this Note, the
term "Undersigned" as used herein shall mean all parties signing this Note, and
each one of them, and all such parties, their respective successors and
permitted assigns, shall be jointly and severally obligated hereunder.
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No delay or failure on the part of Lender in the exercise of any right
or remedy hereunder shall operate as a waiver thereof, nor as an acquiescence in
any default, nor shall any single or partial exercise by Lender of any right or
remedy preclude any other right or remedy. Upon the occurrence and during the
continuance of an Event of Default, Lender, at its option exercisable in its
sole discretion, may enforce its rights against any Collateral securing this
Note or against any other Person primarily or secondarily liable for the
Liabilities without enforcing its rights against the Undersigned (or any one or
more of them) or any other property of or indebtedness due or to become due to
the Undersigned (or any one or more of them). Each Undersigned agrees that,
without releasing or impairing such Undersigned's liability hereunder, Xxxxxx
may at any time release, surrender, substitute or exchange any Collateral
securing this Note and may at any time release any Person (including any one or
more of the Undersigned) primarily or secondarily liable for the indebtedness
evidenced by this Note.
To induce the Lender to make the loan evidenced by this Note, the
Undersigned (and each one of them, if more than one) irrevocably agrees that,
subject to Xxxxxx's sole and absolute election, ALL ACTIONS OR PROCEEDINGS IN
ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS NOTE OR
THE COLLATERAL SHALL BE LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF
PHILADELPHIA, COMMONWEALTH OF PENNSYLVANIA, AND EACH UNDERSIGNED HEREBY (I)
CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURTS
LOCATED WITHIN SAID CITY AND STATE; AND (II) WAIVES ANY OBJECTION BASED ON FORUM
NON-CONVENIENS. IN ADDITION, XXXXXX AND THE UNDERSIGNED (OR ANY ONE OF THEM, IF
MORE THAN ONE) EACH HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS NOTE, THE LIABILITIES,
THE COLLATERAL, OR ANY ALLEGED TORTIOUS CONDUCT BY THE UNDERSIGNED OR LENDER OR
WHICH IN ANY WAY, DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES TO THE
RELATIONSHIP BETWEEN THE UNDERSIGNED AND LENDER. In addition, the Undersigned
agrees that all service of process shall be made as provided in the Loan
Agreement.
THE FOLLOWING SETS FORTH A WARRANT OF AUTHORITY TO CONFESS JUDGMENT
AGAINST EACH OF THE UNDERSIGNED. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS
JUDGMENT EACH OF THE UNDERSIGNED, FOLLOWING CONSULTATION WITH COUNSEL, AND WITH
KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY WAIVES ANY AND ALL RIGHTS SUCH
UNDERSIGNED HAS, OR MAY HAVE, TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING
BEFORE ENTRY OF JUDGMENT UNDER THE CONSTITUTIONS AND LAWS OF THE UNITED STATES
AND THE COMMONWEALTH OF PENNSYLVANIA.
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EACH OF THE UNDERSIGNED HEREBY EMPOWERS ANY PROTHONOTARY, CLERK, OR
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR SUCH UNDERSIGNED AFTER ANY EVENT
OF DEFAULT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT HEREUNDER IN THE
COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE AND CONFESS JUDGMENT AGAINST SUCH
UNDERSIGNED FOR ALL, OR ANY PART OF, THE OBLIGATIONS OF SUCH UNDERSIGNED
HEREUNDER (INCLUDING WITHOUT LIMITATION ALL COSTS AND EXPENSES FOR WHICH THE
UNDERSIGNED IS LIABLE HEREUNDER), TOGETHER WITH COSTS OF SUIT AND AN ATTORNEYS'
COMMISSION IN AN AMOUNT EQUAL TO THE GREATER OF TEN PERCENT (10%) OF SUCH
OBLIGATIONS OF THE UNDERSIGNED HEREUNDER AND SEVEN THOUSAND FIVE HUNDRED DOLLARS
($7,500) ADDED AS A REASONABLE ATTORNEYS' FEE, AND FOR SUCH PURPOSE THE ORIGINAL
OR ANY PHOTOCOPY OF THIS NOTE AND AN AFFIDAVIT OF LENDER OR THEIR RESPECTIVE
COUNSEL AVERRING TO SUCH DEFAULT SHALL BE A GOOD AND SUFFICIENT WARRANT OF
ATTORNEY. SUCH AUTHORIZATION SHALL NOT BE EXHAUSTED BY ONE EXERCISE OR SERIES OF
EXERCISES THEREOF (WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT
TO BE INVALID, VOIDABLE OR VOID), BUT SUCH POWER SHALL CONTINUE UNDIMINISHED AND
JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS LENDER MAY
ELECT UNTIL SUCH TIME AS ALL OF THE OBLIGATIONS OF SUCH UNDERSIGNED HEREUNDER
ARE SATISFIED AND DISCHARGED. EACH OF THE UNDERSIGNED HEREBY WAIVES ALL ERRORS
AND RIGHTS OF APPEAL, AS WELL AS RIGHTS TO STAY OF EXECUTION AND EXEMPTION OF
PROPERTY, IN ANY ACTION TO ENFORCE ITS LIABILITY HEREON.
NOTWITHSTANDING THE ATTORNEY'S COMMISSION PROVIDED FOR IN THE PRECEDING
PARAGRAPH (WHICH IS INCLUDED IN THE WARRANT FOR PURPOSES OF ESTABLISHING A SUM
CERTAIN), THE AMOUNT OF ATTORNEYS' FEES THAT XXXXXX MAY RECOVER FROM THE
UNDERSIGNED SHALL NOT EXCEED THE ACTUAL ATTORNEYS' FEES INCURRED BY XXXXXX.
As used herein, all provisions shall include the masculine, feminine,
neuter, singular and plural thereof, wherever the context and facts require such
construction and in particular the word "Undersigned" shall be so construed.
* * *
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IN WITNESS WHEREOF, and intending to be legally bound, each of the
Undersigned, if more than one, has executed this Note on the date above set
forth.
AM COMMUNICATIONS, INC.
By: /s/ X. Xxxxxxx Xxxxxx, III
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Name: X. Xxxxxxx Xxxxxx, XXX,
Title: Corporate Controller
AM BROADBAND SERVICES, INC.
By: /s/ X. Xxxxxxx Xxxxxx, III
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Name: X. Xxxxxxx Xxxxxx, XXX,
Title: Corporate Controller
SRS COMMUNICATIONS CORPORATION
By: /s/ X. Xxxxxxx Xxxxxx, III
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Name: X. Xxxxxxx Xxxxxx, XXX,
Title: Corporate Controller:
AMC SERVICES, INC.
By: /s/ X. Xxxxxxx Xxxxxx, III
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Name: X. Xxxxxxx Xxxxxx, XXX,
Title: Corporate Controller:
AM NEX-LINK COMMUNICATIONS, INC.
By: /s/ X. Xxxxxxx Xxxxxx, III
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Name: X. Xxxxxxx Xxxxxx, XXX,
Title: Corporate Controller:
AM TRAINING SERVICES, INC.
By: /s/ X. Xxxxxxx Xxxxxx, III
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Name: X. Xxxxxxx Xxxxxx, XXX,
Title: Corporate Controller
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FOR LENDER USE ONLY
Officer's Initials: __________
Approval: __________
