THIS DOCUMENT IS A COPY OF THE EXHIBIT FILED ON OCTOBER 24, 1996
PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
AMENDED AND RESTATED
PROMISSORY NOTE
---------------
$2,550,000.00 October 10, 1996
For value received, DELTA COMPUTEC INC. and DELTA DATA NET, INC., each of
which is a New York corporation with its principal office at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 (collectively, "Borrower"), jointly and severally
promise to pay to the order of XXXXXX X. XXXXXXX XX ("Lender") on or before
December 10, 1996 ("Maturity Date") in lawful money of the United States of
America, at his office located at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
or, at Lender's option, at such other place as may be designated from time to
time by the Lender the principal sum of Two Million Five Hundred Fifty Thousand
and 00/100 Dollars ($2,550,000.00), or, if less, the aggregate unpaid principal
amount of all loans ("Loans") made by the Lender under an Amended and Restated
Credit Agreement ("Agreement") between the Borrower and the Lender, date of even
date herewith, as the same may be amended or supplemented from time to time,
together with interest thereon.
This Note shall bear interest from the date hereof until maturity (whether
by acceleration or otherwise) on the balance of principal hereof from time to
time unpaid at a rate per annum equal to 1 3/4% in excess of the Prime Rate, as
defined below. After maturity (whether by acceleration or otherwise) this Note
shall bear interest on the unpaid principal hereof at a rate per annum equal to
3 3/4% in excess of the Prime Rate; provided, however, in no event shall the
rate of interest on this Note exceed the maximum rate authorized by applicable
law. Interest shall be calculated on the basis of one three hundred sixtieth
(1/360th) of the rate hereon for each calendar day such balance of principal is
unpaid, which will result in a higher effective annual rate. Interest shall be
payable monthly on the first day of each month, commencing November 1, 1996
until the Maturity Date and on the date the principal balance hereof is paid in
full. The rate of interest on this Note shall change simultaneously with a
corresponding change in the Prime Rate. The "Prime Rate" means the highest prime
rate published from time to time in the "Money Rates" column of the Wall Street
Journal or any successor to such publication.
The Lender shall inscribe on a schedule attached to this Note, and any
continuation thereof, all Loans and payments made on account of principal hereof
and the dates thereof. Each such inscription shall be prima facie evidence of
facts so set forth. No failure by the Lender to make and no error by the Lender
in making such inscription shall affect the undersigned's obligation to repay
when due all sums advanced under this Note.
No failure by the Lender hereof to exercise, and no delay in exercising,
any right or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise by
Page 168 of 207 Pages
the holder of any right or power hereunder preclude any other right or power.
The rights and remedies of the holder as herein specified are cumulative and not
exclusive of any other rights or remedies which the holder may otherwise have.
No modification, rescission, waiver, release or amendment of any provision
of this Note shall be made except by a written agreement subscribed by duly
authorized officers of the Borrower and the Lender.
Reference is hereby made to the Agreement for provisions with respect to
prepayment, collateral and rights of acceleration of the principal hereof on the
occurrence of certain events.
Xxxxxxxx agrees to pay all reasonable costs and expenses incurred by the
holder in enforcing this Note or in collecting the indebtedness evidenced
hereby, including, without limitation, if the holder retains counsel for any
such purpose, reasonable attorneys' fees and expenses.
Borrower hereby waives diligence, presentment, protest and demand, and also
notice of protest, demand, dishonor and nonpayment of this Note.
This Note shall be construed under and governed by the internal laws of the
State of New York in effect from time to time without regard to principles of
conflicts of laws.
The obligations of the undersigned under this Note are joint and several.
THIS NOTE IS ISSUED IN ORDER TO AMEND, RESTATE AND EVIDENCE AND TO BE A
SUBSTITUTE FOR, BUT NOT TO BE A PAYMENT, SATISFACTION, CANCELLATION OR A
NOVATION OF A PORTION OF THE INDEBTEDNESS EVIDENCED BY THE THIRD AMENDED AND
RESTATED PROMISSORY NOTE DATED OCTOBER 27, 1995 FROM THE BORROWER TO NATIONAL
CANADA FINANCE CORP. (the "SUPERSEDED NOTE"), WHICH SUPERSEDED NOTE WAS
ASSIGNED, IN PART, TO THE LENDER; PROVIDED, HOWEVER, THAT THE SUBSTITUTION OF
THIS AMENDED AND RESTATED NOTE FOR THE SUPERSEDED NOTE DOES NOT EXTINGUISH THE
INDEBTEDNESS EVIDENCED BY THE SUPERSEDED NOTE OR ANY PORTION THEREOF AND THE
LIABILITIES OF THE BORROWER THEREUNDER AND HEREUNDER ARE CONTINUOUS.
DELTA COMPUTEC INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name:
Title:
Page 169 of 207 Pages
DELTA COMPUTEC INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name:
Title:
Page 170 of 207 Pages
SCHEDULE
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Principal Amount Date Payments Additional Loans Balance
1544,661 10/10/96
Page 171 of 207 Pages
