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EXHIBIT 4(f)
TERM NOTE
$5,000,000.00 Hartford, Connecticut
December 9th, 1998
FOR VALUE RECEIVED, ACMAT CORPORATION, a Connecticut corporation with a
place of business in New Britain, Connecticut ("Maker"), promises to pay to the
order of BANKBOSTON, N.A., a national banking association having a place of
business in Hartford, Connecticut ("Payee") or other holder of this Note the
principal sum of FIVE MILLION ($5,000,000.00) DOLLARS, together with interest on
the outstanding balance hereof before and after maturity, at the rate
hereinafter set forth until this Note shall have been fully paid, all as
hereinafter provided.
INTEREST RATE. The from time to time outstanding balance hereof shall bear
interest at the rate of seven and one quarter (7 1/4%) percent per annum (the
"Rate").
Amounts outstanding hereunder shall bear interest at the Base Rate unless
otherwise so elected by Maker.
PAYMENTS. Commencing on March 1, 1999, and on the first day of each March,
June, September and December thereafter, Maker shall make payments of principal,
each in the amount of $250,000.00, each to be accompanied by a payment of
interest in arrears on the unpaid balance at the Rate(s) aforesaid applicable
during the prior three month period, calculated on the basis of a year of three
hundred and sixty (360) days but for the actual number of days elapsed.
MATURITY DATE. The final maturity date of this Note shall be December 31,
2003, on which date the entire indebtedness evidenced by this Note, including
without limitation, the unpaid principal balance and unpaid interest accrued
thereon, shall be due and payable without notice of demand. The maturity date of
this Note shall in no way be affected or altered as a result of any increase or
decrease in the Rate.
PREPAYMENT. Amounts outstanding hereunder may only be prepaid if such
prepayment is accompanied by the Prepayment Premium as more particularly set
forth in the Agreement.
LATE PAYMENTS. In the event that any payment of principal or interest due
hereunder is not received by Payee within five (5) days after the same is due,
then the Maker agrees to pay to the Payee the additional sum of five (5%)
percent of the amount of such late payment to cover the additional expense of
Payee's handling of such late payment (but not as consideration for making such
late payment). Maker and Payee hereby agree that an exact computation of Payee's
damages relating to such late payment is impossible to ascertain, and further
agree that the percentage stated above is a reasonable estimation of Payee's
damages. Such estimation is based upon, inter alia.
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Payee's additional expenses relating to (i) sending late notices, (ii) referring
the matter to Payee's collection department and (iii) providing for any
necessary regulatory compliance and reserve requirements.
Application of Payments. All payments hereon shall be applied to expenses
as provided herein, interest and principal in such order as Payee shall, in its
discretion, determine. Said sums shall be payable together will all lawful taxes
and assessments levied thereon, or upon this Note, or upon the Payee with
respect to the same, and together with all costs and expenses related to
collecting this Note and together with all costs and expenses of foreclosing or
protecting or sustaining the lien of any security which may be given to secure
the payment of this Note, and/or in any litigation or controversy arising from
or connected with this Note and/or any collateral securing this Note and/or the
Agreement hereinafter referred to and/or incurred in any action brought by the
holder of a prior lien in which the Payee is a party defendant, including
without limitation reasonable attorneys' fees. Said obligation to pay the
reasonable attorneys' fees of the Payee in connection with protecting, enforcing
or realizing of the rights and remedies above described shall exist whether or
not proceedings are instituted or court appearance is made on behalf of the
Payee.
Set Off. Upon the occurrence of an Event of Default the Payee shall have
and may exercise a right of set-off for the payment of this Note and the
aforesaid costs and expenses against, and Maker hereby gives and grants to Payee
a security interest (perfected by Payee's possession thereof) in, all deposits,
monies, securities and property left with the Payee and/or any affiliate of the
Payee by the Maker or by any guarantor, endorser or otherwise to the credit of
or belonging to the Maker or any such party, and the Payee shall have full power
and authority at any time and without prior notice to sell, assign and deliver
any such property at public or private sale, and apply the proceeds in
satisfaction hereof.
Commercial Credit Agreement. This Note is issued under and pursuant to the
terms of a Commercial Credit Agreement of even date (the "Agreement") by and
among the Maker, the Payee and ACSTAR Holdings, Inc., a Delaware corporation, as
Guarantor, which Agreement is in the possession of the Payee.
Guarantee. Additionally, payment of this Note is guaranteed pursuant to a
Guaranty Agreement of even date executed and delivered by ACSTAR Holdings, Inc.
Default. Upon the occurrence of any Event of Default, as such term is
defined in the Agreement or if any payment specified herein shall remain in
arrears and unpaid for a period of ten (10) days after the same shall become
due, at the option of Payee, (i) the interest rate accruing hereunder shall,
from such default, be increased by three (3) percentage points per annum above
the Base Rate (the "Default Rate"), such Default Rate to change when and as said
Base Rate changes, and (ii) this Note shall become forthwith due and payable
without presentment, demand, protest or notice of any kind, all of which being
hereby expressly waived by the undersigned. Without in any way limiting the
generality of the foregoing the interest rate accruing hereunder shall be the
Default Rate (i) upon the option of Payee and (ii) only during the period when
Payee is not also collecting a late payment charge hereunder. Maker and Payee
hereby agree that any Event of Default or default in any payments of principal
or interest hereunder results in, inter alia, additional administrative
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costs, regulatory costs, reserve requirements, and credit costs to Payee. Maker
and Payee further agree that such Default Rate approximates the interest rate
Payee might charge to borrowers with sub-standard credit. In the event the
Default Rate exceeds the maximum rate of interest allowed by law, the Default
Rate shall be reduced so as to equal the maximum rate of interest allowed by
law.
Reimbursement for Costs. If the Payee shall deem applicable to this Note
(including, in each case, the borrowed and the unused portion thereof, if any)
any requirement of any law of the United States of America, any regulation,
order, interpretation, ruling, official directive or guideline (whether or not
having the force of law) of the Board of Governors of the Federal Reserve
System, the Comptroller of the Currency, the Federal Deposit Insurance
Corporation or any other board or governmental or administrative agency of the
United States of America which shall impose, increase, modify or make applicable
to this Note or cause this Note to be included in, any reserve, special deposit,
calculation used in the computation of regulatory capital standards, assessment
or other requirement which imposes on the Payee any cost that is attributable to
the maintenance thereof, then, and in each such event, the Maker shall promptly
pay the Payee, upon its demand, such amount as will compensate the Payee for any
such cost. In the event any such cost is a continuing cost, a fee payable to the
Payee may be imposed upon the Maker periodically for so long as any such cost is
deemed applicable by the Payee, in an amount determined by the Payee to be
necessary to compensate the Payee for any such cost, which determination may be
based upon the Payee's reasonable allocation of the aggregate of such costs
resulting from such events. The determination by the Payee of the existence and
amount of any such costs shall, in the absence of manifest error, be conclusive.
Successors and Assigns. This Note shall bind the Maker's and the Maker's
successors and assigns and all endorsers hereto and shall inure to the benefit
of Payee and/or any subsequent holder of this Note and/or their respective
successors and assigns.
Partial Invalidity. In the event that any one or more of the provisions of
this Note shall for any reason be held to be invalid, illegal or unenforceable,
in whole or in part, or in any respect, or in the event that any one or more of
the provisions of this Note shall operate, or would prospectively operate, to
invalidate this Note, then, and in such event, such provision or provisions only
shall be deemed to be null and void and of no force nor effect and shall not
affect any other provision of this Note, and the remaining provisions of this
Note shall remain in full force and effect, shall be valid, legal and
enforceable, and shall in no way be affected, prejudiced or disturbed thereby.
Joint and Several. The obligations of the Maker and of each and every
endorser, guarantor, and surety shall be joint and several.
Headings. The headings used herein are for the purpose of reference only
and shall not affect any of the terms hereof.
MAKER ACKNOWLEDGES THAT THIS NOTE EVIDENCES A COMMERCIAL TRANSACTION AS
THAT TERM IS DEFINED IN CONNECTICUT GENERAL STATUTES SECTION 52-278a(a) AND
PURSUANT TO CONNECTICUT GENERAL STATUTES
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SECTIONS 52-278b AND 52-278f, MAKER DOES HEREBY WAIVE ITS RIGHTS TO NOTICE AND
HEARING PRIOR TO THE ISSUANCE BY THE PAYEE OF ANY PREJUDGMENT REMEDY, AND MAKER
FURTHER WAIVES ANY RIGHTS AS MAY EXIST UNDER FEDERAL LAW TO ANY NOTICE AND/OR
HEARING PRIOR TO THE PAYEE'S OBTAINING AND EXERCISING ANY PREJUDGMENT REMEDY.
ADDITIONALLY, MAKER AND PAYEE HEREBY EACH WAIVES THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, DEFENSE, COUNTERCLAIM, CROSSCLAIM AND/OR ANY FORM OF PROCEEDING
BROUGHT IN CONNECTION WITH THIS NOTE OR RELATING TO ANY INDEBTEDNESS EVIDENCED
HEREBY AND/OR ANY COLLATERAL NOW OR HEREAFTER SECURING THIS NOTE.
THIS NOTE HAS BEEN MADE, EXECUTED AN DELIVERED IN THE STATE OF CONNECTICUT
AND SHALL BE CONSTRUED AND ENFORCED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CONNECTICUT.
The Maker hereby expressly waives to the full extent and for the maximum
period permitted by applicable law, the right to plead any statute of
limitations or any similar bar as a defense to any demand, claim or cause of
action based upon or arising from such failure to pay any part of the principal
of this Note or any interest thereon, which waiver as to each such failure shall
be separate and distinct from any such waivers or to each other such failure.
The waivers of notice and hearing for prejudgment remedies made herein are made
by the Maker on behalf of the Maker and the Maker's successors and assigns and
shall apply to any and all actions against such successors and assigns.
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The Maker hereby waives presentment, demand, protest, notice of protest or
other notice or notice of dishonor of any kind in any action to collect this
Note or relating to any collateral securing this Note.
ACMAT CORPORATION
By /s/ Henry Nozko Jr.
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Its COO
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