Exhibit 10-H
TERM NOTE
$459,336.30 October 1, 2001
FOR VALUE RECEIVED AND INTENDING TO BE LEGALLY BOUND, AM COMMUNICATIONS,
INC., a Delaware corporation, AM BROADBAND SERVICES, INC., a Delaware
corporation, and SRS COMMUNICATIONS CORPORATIONS, a Connecticut corporation,
each with an office at 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000 (being referred to herein jointly, severally and collectively as
"Maker"), hereby promise to pay to the order of PROGRESS BANK ("Payee"), the
principal sum of Four Hundred Fifty-Nine Thousand Three Hundred Thirty-Six and
30/100 Dollars ($459,336.30)(the "Term Loan"), together with interest thereon
upon the following terms:
1. Term Note. This Note is the "Term Note" as defined in that certain Line
of Credit and Security Agreement dated September 12, 1997, as amended, including
without limitation as amended by that certain Fifth Amendment to Line of Credit
Documents of even date herewith among Maker and Payee (such Line of Credit and
Security Agreement, as amended, and as the same may be further amended,
supplemented or restated from time to time, being referred to herein
collectively as the ("Credit Agreement") and, as such, shall be construed in
accordance with all terms and conditions thereof. Capitalized terms not defined
herein shall have such meaning as provided in the Credit Agreement. This Note is
entitled to all the rights and remedies provided in the Credit Agreement and the
Line of Credit Documents and is secured by all collateral as described therein.
2. Interest Rate.
(a) Interest on the unpaid principal balance hereof will accrue from the
date of advance until final payment thereof at the rate or rates set forth in
Section 2A.1(c) of the Credit Agreement.
(b) Notwithstanding anything to the contrary contained herein or in any
other document executed in connection with the Term Loan, the effective rate of
interest hereunder shall not exceed the maximum effective rate of interest
permitted by applicable law or regulation. Xxxxx hereby agrees not to collect
knowingly any interest from Maker in the form of fees or otherwise which will
render the Term Loan usurious. In the event that such interest would be
usurious, Payee shall reduce the interest payable by Maker. This provision shall
survive the repayment and cancellation of this Note.
3. Default Interest. Interest will accrue on the outstanding principal
amount hereof following the occurrence of an Event of Default or the final
maturity date hereof, until paid at a rate per annum which is two percent (2%)
in excess of the rate otherwise payable under Section 2 above (the "Default
Rate").
4. Post Judgment Interest. Any judgment obtained for sums due hereunder or
under the Line of Credit Documents will accrue interest at the Default Rate
until paid.
5. Computation. Interest will be computed on the basis of a year of three
hundred sixty (360) days and paid for the actual number of days elapsed.
6. Principal and Interest Payments. Principal and accrued interest thereon
is due and payable in (i) forty-seven consecutive monthly payments each in the
amount of Nine Thousand Five Hundred Sixty-Nine and 51/100 Dollars ($9,569.51)
of principal, plus accrued interest thereon at the rate specified above, payable
on the first day of each calendar month commencing on November 1, 2001, and (ii)
one final payment of the remaining principal balance hereof plus all accrued and
unpaid interest thereon on September 30, 2005.
7. Place of Payment. Principal and interest hereunder shall be payable as
provided in the Credit Agreement, or at such other place as Payee, from time to
time, may designate in writing.
8. Prepayments. Maker may prepay at any time all or any portion of the
unpaid principal sum hereunder without penalty or premium but with accrued
interest to the date of such prepayment on the amount prepaid, at any time and
from time to time, in whole or in part, upon notification to the Payee of such
prepayment not later than 10:00 a.m. on the date of such prepayment.
9. Security. This Note, and the due performance by Maker of all of its
obligations hereunder, is secured as set forth in the Credit Agreement, to which
reference is hereby made. Any collateral securing any of Maker's obligations
under any of the Line of Credit Documents is hereinafter referred to as
"Collateral."
10. Late Charge. In the event that any payment of interest due to Payee
hereunder shall not be paid when due and shall remain unpaid in excess of
fifteen (15) days after the due date, in addition to and not in limitation of
any other rights or remedies which Payee may have in respect thereof under any
of the Line of Credit Documents or in respect of the Collateral, Maker shall pay
Payee on demand a "late charge" computed at the rate of five cents ($0.5) for
each dollar (or part thereof) of the amount not paid, to cover the extra expense
and inconvenience to Payee in ensuring payment of such delinquent amount. The
amount of any such "late charge" not paid promptly following demand thereof
shall be deemed outstanding and payable pursuant to this Note and secured by all
Collateral.
11. Events of Default. The occurrence of an Event of Default under the
Credit Agreement shall constitute an Event of Default hereunder.
12. Remedies. Upon the occurrence and during the continuance of any Event
of Default hereunder, then the entire unpaid principal sum hereunder plus all
interest accrued and unpaid, plus all other sums due and payable to Payee under
the Line of Credit Documents shall, at the option of Payee, become due and
payable immediately without presentment, demand,
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notice of non-payment, protest, notice of protest or other notice of dishonor,
all of which are hereby expressly waived by Maker. In addition to the foregoing,
upon the occurrence of any Event of Default Payee may forthwith exercise singly,
concurrently, successively or otherwise any and all rights and remedies
available to Payee under the Credit Agreement.
13. Waivers. Maker and all endorsers hereby, jointly and severally, waive
resentment for payment, demand, notice of demand, notice of nonpayment or
dishonor, protest and notice of protest of this Note, and all other notices in
connection with the delivery, acceptance, performance, default or enforcement of
the payment of this Note.
15. Joint and Several Liability. If there is more than one Maker executing
this Note, all agreements, conditions, covenants and provisions of this Note
shall be the joint and several obligation of each Maker.
16. CONFESSION OF JUDGMENT. MAKER HEREBY IRREVOCABLY AUTHORIZES AND
EMPOWERS ANY ATTORNEY OF RECORD, OR THE PROTHONOTARY OR CLERK OF ANY COURT IN
THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO APPEAR FOR MAKER AT ANY TIME
OR TIMES, AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT
UNDER ANY OF THE LINE OF CREDIT DOCUMENTS, IN ANY SUCH COURT IN ANY ACTION
BROUGHT AGAINST MAKER BY PAYEE WITH RESPECT TO THE AGGREGATE AMOUNTS PAYABLE
UNDER THE LINE OF CREDIT DOCUMENTS, WITH OR WITHOUT DECLARATION FILED, AS OF ANY
TERM, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST MAKER FOR ALL SUMS
PAYABLE BY MAKER TO PAYEE UNDER THE LINE OF CREDIT DOCUMENTS, AS EVIDENCED BY AN
AFFIDAVIT SIGNED BY A DULY AUTHORIZED DESIGNEE OF PAYEE SETTING FORTH SUCH
AMOUNT THEN DUE FROM MAKER TO PAYEE, PLUS A REASONABLE ATTORNEY'S COMMISSION
WITH COSTS OF SUIT AND RELEASE OF PROCEDURAL ERRORS OTHER THAN NOTICES THAT MAY
BE REQUIRED HEREUNDER OR UNDER ANY OF THE OTHER LINE OF CREDIT DOCUMENTS, AND
WITHOUT RIGHT OF APPEAL. IF A COPY OF THIS NOTE, VERIFIED BY AN AFFIDAVIT, SHALL
HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL
AS A WARRANT OF ATTORNEY. MAKER WAIVES THE RIGHT OF STAY OF EXECUTION, THE
BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECT AND ANY AND ALL RIGHTS
TO PRIOR NOTICE AND HEARING WITH RESPECT TO THE GARNISHMENT OR ATTACHMENT OF ANY
PROPERTY PURSUANT TO A JUDGMENT ENTERED HEREUNDER. NO SINGLE EXERCISE OF THE
FOREGOING WARRANT AND POWER TO BRING ANY ACTION OR CONFESS JUDGMENT THEREIN
SHALL BE DEEMED TO EXHAUST THE POWER, BUT THE POWER SHALL CONTINUE UNDIMINISHED
AND MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS PAYEE SHALL ELECT UNTIL ALL
AMOUNTS PAYABLE TO PAYEE UNDER THE LINE OF CREDIT DOCUMENTS SHALL HAVE BEEN PAID
IN FULL. THE EXERCISE BY PAYEE OF ITS RIGHTS AND REMEDIES AND THE ENTRY OF ANY
JUDGMENT BY XXXXX
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UNDER THIS PARAGRAPH 16 SHALL NOT AFFECT IN ANY WAY THE INTEREST RATE PAYABLE
HEREUNDER OR UNDER ANY OF THE OTHER LINE OF CREDIT DOCUMENTS OR ANY AMOUNTS DUE
TO PAYEE, BUT INTEREST SHALL CONTINUE TO ACCRUE ON SUCH AMOUNTS AT THE DEFAULT
RATE.
17. JURY TRIAL WAIVER. MAKER WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER ANY OF THE LINE OF
CREDIT DOCUMENTS OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF MAKER OR PAYEE WITH RESPECT TO ANY OF THE LINE OF CREDIT
DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE. MAKER AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THE CREDIT AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF MAKER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY. MAKER
ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING
THIS PARAGRAPH, THAT IT FULLY UNDERSTANDS ITS TERMS, CONTENT AND EFFECT, AND
THAT IT VOLUNTARILY AND KNOWINGLY AGREES TO THE TERMS OF THIS PARAGRAPH.
18. Definitions: Number and Gender. For purposes of this Note, the singular
shall be deemed to include the plural and the neuter shall be deemed to include
the masculine and feminine, as the context may require. The references herein to
the Line of Credit Documents or any one of them shall include any supplements to
or any amendments of or restatements of such Line of Credit Documents or any one
of them.
19. Incorporation by Reference. All of the terms and provisions of the Line
of Credit Documents, to the extent not inconsistent herewith, are hereby
incorporated herein by reference.
20. Captions. The captions or headings of the paragraphs in this Note are
for convenience only and shall not control or affect the meaning or construction
of any of the terms or provisions of this Note.
21. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, Maker, intending to the legally bound hereby, has
caused this Note to be duly executed the day and year first above written.
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[CORPORATE SEAL] AM COMMUNICATIONS, INC., a Delaware
corporation
Attest: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxxxxx Xxxxx Name: Xxxxx X. Xxxxxx
Title: Corporate Secretary Title: CEO
[CORPORATE SEAL] AM BROADBAND SERVICES, INC., a
Delaware corporation
Attest: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxxxxx Xxxxx Name: Xxxxx X. Xxxxxx
Title: Corporate Secretary Title: CEO
[CORPORATE SEAL] SRS COMMUNICATIONS CORPORATION, a
Connecticut corporation
Attest: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxxxxx Xxxxx Name: Xxxxx X. Xxxxxx
Title: Corporate Secretary Title: CEO
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