1
Exhibit 4(b)
PROMISSORY NOTE
$7,800,000.00 Hartford, Connecticut
December 23, 1998
FOR VALUE RECEIVED, the undersigned, ACMAT CORPORATION, a Connecticut
corporation having a principal place of business at 233 Main Street, New
Britain, Connecticut 06050-2350 ("BORROWER"), promises to pay to the order of
WEBSTER BANK, a Connecticut banking corporation with a principal place of
business at 150 Main Street, Bristol, Connecticut 06010 ("LENDER"), the
principal sum of SEVEN MILLION EIGHT HUNDRED THOUSAND DOLLARS ($7,800,000.00) or
so much thereof as may be outstanding from time to time hereunder (the
"PRINCIPAL AMOUNT"), together with (i) interest at the rate and in the manner
hereinafter provided; (ii) all amounts which may become due under the Mortgage
Deed dated the date hereof securing this Note (the "MORTGAGE"), which Mortgage
encumbers that certain real property located at 233-235 Main Street, New
Britain, Connecticut (the "PROPERTY") or under any other documents securing,
relating to or further evidencing the indebtedness evidenced by this Note
(collectively with the Note and the Mortgage, the "LOAN DOCUMENTS"); (iii) any
costs and expenses, including reasonable attorneys' and appraisers' fees,
incurred in the collection of this Note, or in the foreclosure of the Mortgage,
or in protecting or sustaining the lien of the Mortgage, or in any litigation or
controversy arising from or connected with this Note or the Loan Documents; and
(iv) all taxes (other than income taxes) or duties assessed upon the debt
evidenced hereby or by the Mortgage and upon the property encumbered by the
Mortgage. All amounts owing under this Note and interest thereon shall be
payable in legal tender of the United States of America.
1. INTEREST RATE
1.1 Interest Rate. The Principal Amount shall bear interest at a fixed rate
equal to six and ninety-five hundredths percent (6.95%) per annum (the "INTEREST
RATE"). Interest on the Principal Amount shall be calculated on the basis of a
three hundred sixty (360) day year and be charged and due for the actual number
of calendar days elapsed.
1.2 Maximum Interest Rate. Notwithstanding any provisions of this Note, it
is the understanding and agreement of Borrower and Lender that the interest
required to be paid by Borrower to Lender under this Note shall not exceed the
maximum rate of interest permissible to be charged by Lender under applicable
laws. Any amount paid in excess of such rate shall be considered to have been a
payment in reduction of principal.
1
2
2. PAYMENTS OF PRINCIPAL AND INTEREST
2.1 Principal and Interest Payments Until Maturity. If this Note is dated
other than the first day of the month, Borrower shall pay to Lender on the date
hereof interest on the Principal Amount from and including the date hereof (or
the date of disbursement, if later) to and including the last day of the month
in which this Note is dated. A payment consisting of principal and interest in
the amount of $90,749.64 (calculated based upon a 120-month self-liquidating
amortization schedule utilizing a three hundred sixty (360) day year of twelve
(12) equal thirty (30) day months) shall be due and payable in arrears,
commencing on the first (1st) day of February, 1999 and a like sum of $90,749.64
on the first (1st) day of each and every calendar month thereafter up to and
including the first (1st) day of January, 2009.
2.2 Method of Payment. All payments due hereunder shall be payable in
lawful money of the United States of America which shall be legal tender for
public and private debts at the time of payment. Payment shall be made to Lender
at the address set forth in the heading of this Note, or at such other place as
Lender may designate from time to time in writing.
2.3 Maturity. The unpaid principal balance hereof, all accrued and unpaid
interest and all other obligations due hereunder shall be due and payable in
full on January 1, 2009 (the "MATURITY DATE").
2.4 Application of Payments. Payments made under this Note shall be applied
in the following order: first to any late charges and any other fees or charges
to which Borrower shall become subject under this Note; second, to interest due
on this Note; and third, to the Principal Amount.
2.5 Business Day. Whenever any payment hereunder shall be stated to be due
on a day other than a "business day" (a day on which banks are open for business
in Connecticut), such payment shall be made on the next succeeding business day,
unless such extension would cause such payment to be payable in the next
following calendar month, in which case such payment shall be made on the
business day most immediately preceding such day.
2.6 Prepayment. Provided no Event of Default (as hereinafter defined)
exists under this Note or under the other Loan Documents, the Principal Amount
may be prepaid in whole, but not in part. The Principal Amount may be prepaid
only if accompanied by a fee (the "PREPAYMENT FEE") in an amount equal to the
greater of (i) one percent (1%) of the then outstanding Principal Amount or (ii)
the Yield Maintenance Amount (hereinafter defined). Borrower shall also pay to
Lender, as a condition to any permitted prepayment, all unpaid late charges and
accrued but unpaid interest due up to and including the date of prepayment.
2.7 The Yield Maintenance Amount shall be computed as follows: From the
Interest Rate in effect on the date of prepayment, there shall be subtracted the
interest yield rate, as published in the Wall Street Journal on the regularly
scheduled monthly payment date prior to the
2
3
date of prepayment, on United States Treasury Notes or Bonds which will mature
in the same year and month in which the Maturity Date occurs. If no such Note or
Bond matures in such month, then the next month in which such a Note or Bond
will mature shall be the month used to determine the applicable interest yield
rate. If there is more than one such Note or Bond maturing in the applicable
month, then the average of the interest yield rates on all such Notes or Bonds
shall be used. The resulting percentage shall be multiplied by a fraction whose
numerator is the number of days between the date of prepayment and the Maturity
Date, and whose denominator is 365. If the Wall Street Journal is not published
on the regularly scheduled monthly payment date prior to the date of prepayment,
then the next published issue of the Wall Street Journal shall be used. If the
Wall Street Journal ceases to publish interest yield rates described herein or
if there is a suspension of publication of the Wall Street Journal from such
interest payment date through the date of prepayment, then any alternate source
for such rate which Lender may reasonably designate shall be used.
If payment of the Principal Amount shall be accelerated for any reason
whatsoever, the Prepayment Fee in effect as of the date of such acceleration
shall be due and payable, and such Prepayment Fee shall be added to the
Principal Amount in determining the debt for purposes of any judgment of
foreclosure of the Mortgage
3. DEFAULT; REMEDIES
3.1 Event of Default. For purposes of this Note, the term "EVENT OF
DEFAULT" shall mean any of the following events:
(a) The failure of Borrower to pay (i) any periodic installment of
interest or principal when such installment shall become due and
payable hereunder after ten (10) days prior written notice and
opportunity to cure, unless Lender believes such prior notice and
opportunity to cure will have a material adverse effect on its
rights and remedies, or (ii) the outstanding principal balance of
this Note, together with interest accrued thereon and any other
amounts then due hereunder, on the Maturity Date;
(b) The occurrence of an Event of Default (as defined therein) under
any of the Loan Documents (beyond any applicable grace or cure
periods set forth therein).
(c) The filing by or against Borrower or any guarantor of the loan
evidenced by this Note (the "LOAN") of any petition, arrangement,
reorganization, or the like under any insolvency or bankruptcy
law, or the adjudication of Borrower or any guarantor as a
bankrupt (and if such filing is involuntary, the failure to have
same dismissed within sixty (60) days from the date of filing),
or the making of an assignment for the benefit of creditors, or
the appointment of a receiver for any part of Borrower's or any
guarantor's
3
4
properties or the admission in writing by Borrower or any
guarantor of the inability to pay debts as they become due.
(d) The breach of any warranty or the untruth or inaccuracy of any
representation of Borrower or any guarantor in the Loan
Documents.
(e) The occurrence of a default under, or demand for the payment of,
any other note or obligation of Borrower or any guarantor to
Lender.
(f) The attempted revocation or termination of any guaranty of the
Loan.
(g) The failure by Borrower or any guarantor to make payment on any
obligation for borrowed money due to any party other than Lender,
beyond any grace or cure period provided with respect thereto, or
the occurrence of any other default under any agreement under
which any such obligation is created, the effect of which default
is to cause such obligation to become due and payable prior to
its date of maturity, including without limitation, any
obligations owed by Borrower to Fleet National Bank.
(h) The failure of any guarantor to provide any financial statement
or copy of a tax return required under the terms of any guaranty
of the Loan.
(i) The passage or enforcement of any federal, state, or local law,
or the rendition of a final decision of any court (other than a
law or decision with respect to a tax upon the general revenues
of Lender), in any way directly changing or affecting the Loan or
lessening the net income thereon in a fashion which is not
corrected or reimbursed by Borrower.
(j) The passage or enforcement of any federal, state, or local law,
or the rendition of a final decision of any court, in any way
impairing Lender's ability to charge and collect the interest
stated under this Note, including without limitation, the ability
to vary the interest payable under this Note in accordance with
the terms hereof.
(k) The default by Borrower of any of the covenants contained in
Section 4 hereof.
3.2 Acceleration; Remedies. Upon the occurrence of an Event of Default and
at any time thereafter, Lender may, at its option, declare the entire unpaid
Principal Amount (or any part thereof designated by Lender), together with
accrued interest and all other amounts due hereunder, to be immediately due and
payable, without the necessity for prior demand or notice. The rights, powers
and remedies of Lender provided in this Note or any of the other Loan Documents
are and shall be cumulative and concurrent with one another and with any other
rights, powers and
4
5
remedies available to Lender at law or in equity. Such rights, powers and
remedies may be pursued separately, successively or together, in the sole
discretion of Lender, and may be exercised as often as occasion therefor shall
arise.
3.3 Late Charges. Any installment of principal or interest due hereunder
that is not received within ten (10) days after its due date, shall be subject
to a late charge equal to five percent 5% of such overdue payment. In connection
therewith, Borrower agrees as follows: (i) such late payment will cause Lender
to incur administrative costs, collection costs, loss of interest, and other
direct and indirect costs in uncertain amounts, (ii) it would be impractical or
extremely difficult to fix the exact amount of such costs in such event, and
(iii) the late charge is a reasonable estimate of such costs and is fair
compensation to Lender for its anticipated losses resulting from such late
payment.
3.4 Default Interest Rate. From and after either the occurrence of an Event
of Default or the maturity of this Note, any amount due hereunder which is not
paid shall bear interest (without the necessity of further or additional notice)
at the Interest Rate in effect hereunder (as the same may adjust in accordance
with the terms hereof) plus four percent (4%) per annum (the "DEFAULT RATE"),
until the required payment is made.
4. COVENANTS
4.1 Definitions. As used herein, the following terms shall have the
following meanings.
(a) ADJUSTED CASH FLOW: Cash Flow plus allowable dividends permitted
to be paid to Borrower by its Subsidiaries plus management and
underwriting fees paid to Borrower by its Subsidiaries plus rent
paid to Borrower by its Subsidiaries plus tax sharing payments
paid to Borrower by its Subsidiaries (in all cases, not requiring
regulatory approval).
(b) AFFILIATE: with reference to any Person, any director, officer or
employee of such Person, any corporation, association, firm or
other entity in which such Person has a direct or indirect
controlling interest or by which such Person is directly or
indirectly controlled or is under direct or indirect common
control with such Person.
(c) CASH FLOW: Borrower's unconsolidated net income for an accounting
period before provision for payment of Interest Expense and all
income taxes plus depreciation and amortization to the extent
deducted from such net income during such accounting period, all
as determined by GAAP less capital expenditures less income taxes
paid in cash less dividends paid.
5
6
(d) DEBT SERVICE: for any period, the sum of (i) Interest Expense,
(ii) Principal Amortization and (iii) scheduled payments by
Borrower on its capitalized leases.
(e) FUNDED DEBT: aggregate consolidated Indebtedness of Borrower for
borrowed money but excluding Indebtedness owing to the Sheetmetal
Workers National Pension Fund or any refinance of the same.
(f) GAAP: generally accepted accounting principals and practices
consistently applied from accounting period to accounting period.
(g) GOVERNMENTAL AUTHORITIES: any federal, state or local
governmental authority or any political subdivision of any of
them and any court, agency, department, commission, board, bureau
or instrumentality of any of them which now or hereafter has
jurisdiction over the Borrower's business premises.
(h) INDEBTEDNESS: as applied to a Person, (a) all items, except items
of capital stock or of surplus or of general contingency reserves
or of reserves for deferred income taxes, which in accordance
with generally accepted accounting principles and practices would
be included in determining total liabilities as shown on the
liability side of a balance sheet of such person as at the date
of which indebtedness is to be determined, (b) all indebtedness
secured by any mortgage, pledge, lease, lien or conditional sale
or other title retention agreement existing on any property or
asset owned or held by such person subject thereto, whether or
not such indebtedness shall have been assumed, and (c) all
indebtedness of others which such Person has directly or
indirectly guaranteed, endorsed, discounted or agreed
(contingently or otherwise) to purchase or repurchase or
otherwise acquire, or in respect of which such Person has agreed
to supply or advance funds (whether by way of loan, stock
purchase, capital contribution or otherwise) or otherwise to
become liable directly or indirectly with respect thereto.
(i) INTEREST EXPENSE: for any period, all amounts accrued by
Borrower, whether as interest, late charges, service fees or
other charge for money borrowed on account of or in connection
with Borrower's indebtedness for money borrowed or with respect
to which Borrower or any of their respective properties are
liable by assumption, operation of law or otherwise, including,
without limitation, any leases which are required, in accordance
with generally accepted accounting principles, to be carried as a
liability on Borrower's balance sheet.
6
7
(j) INSURANCE SUBSIDIARY: Acstar Insurance Company and/or United
Coastal Insurance Company.
(k) NAIC: National Association of Insurance Commissioners.
(l) PERSON: a corporation, an association, a partnership, an
organization, a limited liability company, a business, an
individual or a government or political subdivision thereof or
any governmental agency.
(m) STATUTORY CAPITAL: means Statutory Capital plus Statutory Surplus
of the Insurance Subsidiaries as shown on the statutory financial
statements filed with the states of Illinois and Arizona.
(n) STATUTORY OPERATING EARNINGS: means the Statutory Operating
Earnings of the Insurance Subsidiaries as shown on the statutory
financial statements filed with the states of Illinois and
Arizona.
(o) SUBSIDIARY: with reference to any Person, a corporation, or
similar association or entity not less than a majority of the
outstanding shares of the class or classes of stock, having by
the terms thereof ordinary voting power to elect a majority of
the directors, managers or trustees of such corporation,
association or entity, of which are at the time owned or
controlled, directly or indirectly, by such Person or by a
Subsidiary of such Person.
4.2 Financial Covenants. Borrower shall maintain the following, calculated
in accordance with GAAP, as shown on the financial statements required to be
provided pursuant to Section 1.13 of the Mortgage;
(a) a ratio of Borrower's consolidated total Indebtedness to
Borrower's (i) cash on hand and cash equivalents on hand plus
(ii) marketable securities (including amounts owing to Borrower
in connection therewith but not yet paid) plus (iii) accrued
interest receivable of not more than 1.05 to 1.0 measured at the
end of each Fiscal Quarter; and
(b) an Interest Coverage Ratio (being the ratio of Adjusted Cash Flow
to consolidated Interest Expense) of at lease 2.25 to 1.0
measured; (i) on a calendar year basis at the end of each Fiscal
Quarter commencing with the Fiscal Quarter ending March 31, 1999
and continuing through the Fiscal Quarter ending September 30,
1999, and (ii) at the end of each Fiscal Quarter over the
immediate preceding four (4) Fiscal Quarters commencing
7
8
with the Fiscal Quarter ending December 31, 1999 and for each
Fiscal Quarter thereafter.
(c) a Debt Service Coverage Ratio (being the ratio of Adjusted Cash
Flow to Debt Service) of not less than 1.25 to 1.0 measured; (i)
on a calender year basis at the end of each Fiscal Quarter
commencing with the Fiscal Quarter ending March 31, 1999 and
continuing through the Fiscal Quarter ending September 30, 1999,
and (ii) at the end of each Fiscal Quarter over the immediate
preceding four (4) Fiscal Quarters commencing with the Fiscal
Quarter ending December 31, 1999 and for each Fiscal Quarter
thereafter.
(d) a ratio of Borrower's total Funded Debt to Statutory Operating
Earnings of not more than 5.0 to 1.0 measured: (i) on a calender
year basis at the end of each Fiscal Quarter commencing with the
fiscal Quarter ending March 31, 1999 and continuing through the
Fiscal Quarter ending September 30, 1999, and (ii) at the end of
each Fiscal Quarter over the immediate preceding four (4) Fiscal
Quarters commencing with the Fiscal Quarter ending December 31,
1999 and for each Fiscal Quarter thereafter.
(e) a ratio of Borrower's total Funded Debt to Statutory Capital of
not more than 0.70 to 1.0 measured at the end of each Fiscal
Quarter.
Borrower acknowledges that it has assisted Lender in the formation of each
of the foregoing financial performance criteria and fully understands each of
said criteria.
4.3 Special Covenants re Insurance Subsidiaries. The Borrower shall:
(a) Notify the Lender annually of the allowable dividend which may be
paid by each Insurance Subsidiary to the Borrower.
(b) Notify the Lender promptly if any Insurance Subsidiary has
applied for permission to grant any special dividends.
(c) Notify the Lender of any allegation of non-compliance by any
Insurance Subsidiary with the laws and regulations of each state
in which it is approved to sell insurance, specifically
including, without limitation, the State of New York, except this
notification does not apply to any non-compliance matter if such
non-compliance matter does not have a material effect.
(d) Furnish to the Lender annually all reports issued by its outside
auditors which analyze the adequacy of the level of each
Insurance Subsidiary's reserves.
8
9
(e) Notify the Lender of any material change in any Insurance
Subsidiary's risk based capital ratio.
(f) Maintain in each Insurance Subsidiary actual capital equal to or
in excess of its required risk based capital.
(g) Notify the Lender, promptly upon becoming aware, of the
following: (i) any material increase in the levels of primary
liability of each Insurance Subsidiary which is ceded to
reinsurers, (ii) the occurrence of any default in any such
contract of reinsurance and (iii) the occurrence of any
insolvency of any reinsurer or any non-compliance by any
reinsurer with the NAIC risk based capital guidelines.
(h) Notify the Lender, promptly upon becoming aware, of the
following: (i) any material increase in the levels of primary
liability of each Insurance Subsidiary which is co-insured with
others, (ii) the occurrence of any default in any such contract
of co-insurance and (iii) the occurrence of any insolvency of any
co-insurer or any non-compliance by any co-insurer with the NAIC
risk based capital guidelines.
(i) Notify the Lender within 90 days of the fiscal year end each
Insurance Subsidiary's (i) net investment income for the year
then ended, (ii) the statutory surplus for the year then ended,
(iii) the "Combined Ratio" for each such Insurance Subsidiary for
the year then ended, (iv) the loss, if any, of any Insurance
Subsidiary in excess of 15% of its statutory surplus for the year
then ended, (v) a listing of each Insurance Subsidiary's
reinsurance recoverables which are more than 90 days past due as
at the end of any year and (vi) a listing of all transactions
with Affiliates entered into by any Insurance Subsidiary during
the year then ended.
(j) Notify the Lender of any reduction in the rating by A.M. Best and
Company of any Insurance Subsidiary.
4.4 Upstream Dividends. Borrower shall, among other things, cause its
Subsidiaries to pay to Borrower such profits, excess capital and other sums as
may be necessary to comply with the financial covenants set forth in this
Section. In extension of the foregoing, Borrower shall diligently apply for and
pursue any approvals from any state or regulatory authority having jurisdiction
over each such Subsidiary if such approvals are necessary to comply with the
financial covenants set forth in this Section.
4.5 Rating. The Insurance Subsidiaries shall at all times maintain a rating
by A.M. Best and Company of at least B+.
9
10
4.6 Restrictions on Indebtedness. Directly or indirectly, create, incur,
assume, guarantee, agree to purchase or repurchase, pay or provide funds in
respect of, or otherwise become or be or remain liable, contingently, directly
or indirectly, with respect to, any Indebtedness other than:
(a) Indebtedness to Lender;
(b) current liabilities for trade and other obligations incurred in
the ordinary course of its business not yet past due and not as a
result of borrowing;
(c) Indebtedness arising under leases permitted hereby;
(d) Indebtedness in respect of endorsements made in connection with
the deposit of items for credit or collection in the normal and
ordinary course of business; and
(e) Indebtedness described in the financial statements described in
Section 2.8 of a certain commercial Credit Agreement by and
between Borrower and Bank Boston, N.A. dated December 9, 1998
(the "Credit Agreement") or refinancing of such Indebtedness in
amounts not to exceed such refinanced Indebtedness.
(f) Indebtedness otherwise in conformity with all of the other terms
hereof incurred in order to fund the loan, advance or capital
contribution described in Section 4.3(F) of the Credit Agreement.
Borrower shall not guarantee or otherwise assure any obligation of any
other party including, without limitation, that of any Guarantor.
5. MISCELLANEOUS PROVISIONS
5.1 Attorneys' Fees. Should suit be brought to enforce, interpret or
collect any part of this Note, Lender shall be entitled to recover, as an
element of the costs of suit and not as damages, reasonable attorneys' fees and
other costs of such enforcement, interpretation or collection.
5.2 Notices. All notices and communications under this Note shall be in
writing and shall be given by either (a) hand-delivery, (b) first class mail
(postage prepaid), or (c) reliable overnight commercial courier (charges
prepaid), to the addresses listed on the first page hereof. Notice shall be
deemed to have been given and received: (i) if by hand delivery, upon delivery;
(ii) if by mail, three (3) calendar days after the date first deposited in the
United States mail; and
10
11
(iii) if by overnight courier, on the date scheduled for delivery. A party may
change its address by giving written notice to the other party as specified
herein.
5.3 Setoff. Borrower hereby gives Lender a lien and right of setoff for all
of Borrower's obligations hereunder upon and against the deposits, credits and
property of Borrower now or hereafter in Lender's possession or control or in
transit to Lender. Lender may, at any time, apply the same or any part thereof
to any of Borrower's obligations hereunder, though unmatured, without notice and
without first resorting to any other collateral.
5.4 Borrower's Waivers.
(a) Borrower and all guarantors, endorsers and other parties now or
hereafter becoming liable for the payment of this Note hereby
waive demand, diligence, presentment, protest, demand of payment,
and notice of protest, dishonor and nonpayment, and waive the
legal effect of Lender's failure to give all notices not
expressly provided for herein. Borrower expressly agrees that,
without in any way affecting the liability of Borrower hereunder,
Lender may, without notice to Borrower, extend the Maturity Date
or the time for payment of any amount due hereunder, accept
additional security, waive or modify any provision of the Loan
Documents, release any party liable hereunder or thereunder, and
release any security now or hereafter securing this Note.
(b) To the extent permitted by applicable law, Borrower hereby waives
and releases all benefit that might accrue to Borrower by virtue
of any present or future laws exempting the Property, or any
other property, real or personal, pledged or mortgaged as
security for the payment of this Note, or any part of the
proceeds arising from any sale of any such property, from
attachment, levy, or sale under execution, or providing for any
stay of execution, exemption from civil process, or extension of
time for payment; and Borrower agrees that any real estate that
may be levied upon pursuant to a judgment obtained by virtue
hereof, or any writ of execution issued thereon, may be sold upon
any such writ in whole or in part in any order desired by Lender.
5.5 Severance. The invalidity or unenforceability of any one or more
phrases, sentences, clauses or sections contained in this Note shall not affect
the validity or enforceability of the remaining portions of this Note, or any
part thereof.
5.6 Remedies Cumulative. No remedy herein conferred upon or reserved to
Lender is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Note or now or hereafter existing at law or
in equity. No delay or omission on the part of Lender to
11
12
exercise any of its rights hereunder or under any of the Loan Documents shall
impair or operate as a waiver of Lender's right to exercise such right or any
other right of Lender hereunder or under the Loan Documents. In order to entitle
Lender to exercise any remedy reserved to it in this Note, it shall not be
necessary to give any notice, other than such notice as may be herein expressly
required. Any waiver, express or implied, of any breach or default hereunder
shall not constitute a waiver of any subsequent or different breach or default
hereunder.
5.7 Modification. No provision of this Note may be waived, modified or
discharged, including, without limitation, by conduct, custom or course of
dealing, other than by an express writing signed by the party against whom
enforcement of such waiver, modification or discharge is sought.
5.8 Construction of Agreement. Whenever in this Note words of any gender
appear, they should be deemed to apply equally to any gender. Whenever used in
this Note, the plural shall include the singular and the singular shall include
the plural, as the context may require. If this Note is now, or hereafter shall
be, signed by more than one person, it shall be the joint and several obligation
of all such persons and shall be binding on all such persons and their
respective successors and assigns. This Note shall be interpreted without regard
to any presumption or other rule requiring presumption against the party which
drafted this Note.
5.9 Capitalized Terms. Any capitalized words used in this Note and not
herein defined shall have the meanings ascribed to such terms in the Loan
Documents.
5.10 Governing Law. The rights and duties of Borrower and Lender under this
Note shall be governed by the internal laws of the State of Connecticut.
5.11 Venue. Borrower hereby consents to the exercise of personal
jurisdiction over it by any federal or state court in the State of Connecticut
and consents to the laying of venue in any jurisdiction or locality in the State
of Connecticut. Borrower irrevocably appoints the Secretary of State of the
State of Connecticut, as Borrower's agent for receipt of service of process on
Borrower's behalf in connection with any suit, writ, attachment, execution or
discovery or supplementary proceedings in connection with the enforcement of
this Note. Service shall be effected by any means permitted by the court in
which any action is filed, or at Lender's option, by mailing process, postage
prepaid, by certified mail, return receipt requested, or to Borrower at
Borrower's address set forth on the first page of this Note. Service shall be
deemed effective upon receipt. Borrower may designate a change of address for
purposes of this Section by written notice to Lender made in accordance with the
provisions of SECTION 4.2 hereof, at least ten (10) days before such change of
address is to become effective.
5.12 WAIVER OF JURY TRIAL. BORROWER HEREBY EXPRESSLY WAIVES ANY AND ALL
RIGHTS IT MAY HAVE TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF
ACTION (1) ARISING UNDER THIS NOTE OR ANY OTHER LOAN DOCUMENT, OR (2) IN ANY WAY
CONNECTED WITH OR
12
13
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND BORROWER HEREBY AGREES
AND CONSENTS THAT LENDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF BORROWER'S CONSENT TO THE WAIVER
OF ITS RIGHT TO TRIAL BY JURY.
5.13 PREJUDGMENT REMEDY WAIVER. BORROWER HEREBY REPRESENTS, COVENANTS AND
AGREES THAT THE PROCEEDS OF THE LOAN SHALL BE USED FOR GENERAL COMMERCIAL
PURPOSES AND THAT THE LOAN IS A "COMMERCIAL TRANSACTION" AS DEFINED BY THE
STATUTES OF THE STATE OF CONNECTICUT. BORROWER HEREBY 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 LENDER MAY EMPLOY
TO ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER. MORE SPECIFICALLY, BORROWER
ACKNOWLEDGES THAT LENDER'S ATTORNEY MAY, PURSUANT TO CONNECTICUT GENERAL
STATUTES, SECTION 52-278f, ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT
SECURING A COURT ORDER. BORROWER ACKNOWLEDGES AND RESERVES ITS RIGHT TO NOTICE
AND A HEARING SUBSEQUENT TO THE ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY BY
LENDER'S ATTORNEY, AND LENDER ACKNOWLEDGES BORROWER'S RIGHT TO SAID HEARING
SUBSEQUENT TO THE ISSUANCE OF SAID WRIT. BORROWER FURTHER HEREBY WAIVES ANY
REQUIREMENT OR OBLIGATION OF LENDER TO POST A BOND OR OTHER SECURITY IN
CONNECTION WITH ANY PREJUDGMENT REMEDY OBTAINED BY LENDER AND WAIVES ANY
OBJECTIONS TO ANY PREJUDGMENT REMEDY OBTAINED BY LENDER BASED ON ANY OFFSETS,
CLAIMS, DEFENSES OR COUNTERCLAIMS OF BORROWER OR ANY OTHER OBLIGATED PARTY TO
ANY ACTION BROUGHT BY LENDER. 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.
5.14 Time of Essence. Time is of the essence in the performance of all
obligations of Borrower under this Note and the Loan Documents.
13
14
5.15 Binding Effect. This Note shall bind the heirs, executors,
administrators, successors and assigns of Borrower and all endorsers hereto, and
shall inure to the benefit of Lender and its successors and assigns.
BORROWER:
ACMAT CORPORATION
By: /s/ Henry W. Nozko, Jr.
-----------------------------------
Henry W. Nozko, Jr.
Executive Vice President
14