EXHIBIT 10.6
PROMISSORY NOTE
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(TERM)
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$5,500,000.00 August 15, 2006
FOR VALUE RECEIVED, BEST CIRCUIT BOARDS, INC., a Texas corporation,
INTEGRATED PERFORMANCE SYSTEMS, INC., a New York corporation, and GLOBAL
INNOVATION CORP., a Delaware corporation (whether one or more, "Borrower"),
having an address at 901 Hensley Lane, Wylie, Texas 75098, hereby promises
to pay to the order of AMEGY BANK N.A., a national banking association
(together with its successors and assigns and any subsequent holders of this
Promissory Note, the "Lender"), as hereinafter provided, the principal sum
of FIVE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($5,500,000.00) or
so much thereof as may be advanced by Lender from time to time hereunder to
or for the benefit or account of Borrower, together with interest thereon at
the Note Rate (as hereinafter defined), and otherwise in strict accordance
with the terms and provisions hereof.
ARTICLE I
DEFINITIONS
Section1.1 DEFINITIONS. As used in this Promissory Note, the
following terms shall have the following meanings:
Applicable LIBOR Margin: One and three-quarters percent (1.75%).
Applicable Rate: LIBOR plus the Applicable LIBOR Margin.
Base Rate: For any day, a rate of interest equal to the Prime Rate for
such day.
Borrower: As identified in the introductory paragraph of this Note.
Business Day: A weekday, Monday through Friday, except a legal holiday
or a day on which banking institutions in Dallas, Texas are authorized or
required by law to be closed. Unless otherwise provided, the term "days"
when used herein shall mean calendar days.
Change: (i) any change after the date of this Note in the risk-based
capital guidelines applicable to Lender or (ii) any adoption of or change in
any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law) after the date of this Note that affects capital adequacy or the amount
of capital required or expected to be maintained by Lender or any entity
controlling Lender.
Charges: All fees, charges and/or any other things of value, if any,
contracted for, charged, taken, received or reserved by Lender in connection
with the transactions relating to this Note and the other Loan Documents,
which are treated as interest under applicable law.
Debtor Relief Laws: Title 11 of the United States Code, as now or
hereafter in effect, or any other applicable law, domestic or foreign, as
now or hereafter in effect, relating to bankruptcy, insolvency, liquidation,
receivership, reorganization, arrangement or composition, extension or
adjustment of debts, or similar laws affecting the rights of creditors.
Deed of Trust: The Deed of Trust, Assignment of Rents, Security
Agreement, and Fixture Filing dated as of the date hereof, executed by Best
Circuit Boards, Inc., as grantor, to John G. Lingor, as trustee, for the
benefit of Lender, as beneficiary, relating to the Mortgaged Property. The
indebtedness evidenced by this Note and the obligations created hereby are
secured by, among other things, the Deed of Trust and the other Loan
Documents.
Default Interest Rate: A rate per annum equal to the Applicable Rate
plus four percent (4%), but in no event in excess of the Maximum Lawful
Rate.
Event of Default: Any event or occurrence described under Section 3.1
hereof.
Lender: As identified in the introductory paragraph of this Note.
LIBOR Banking Day: Any day on which commercial banks in the City of
London, England are open for business and dealing in offshore dollars.
LIBOR Determination Date: A day that is three LIBOR Banking Days prior
to the beginning of the relevant LIBOR Interest Period.
LIBOR Interest Period: A period of one, two or three months. The
first day of the interest period must be a LIBOR Banking Day. The last day
of the interest period and the actual number of days during the interest
period will be determined by Lender using the practices of the London
inter-bank market.
LIBOR: With respect to each LIBOR Interest Period, the rate (expressed
as a percentage per annum and adjusted as described in the last sentence of
this definition of LIBOR) for deposits in United States Dollars that appears
on Telerate Page 3750 (or the successor thereto) as of 11:00 a.m., London,
England time, on the related LIBOR Determination Date. If such rate does
not appear on such screen or service, or such screen or service shall cease
to be available, LIBOR shall be determined by Lender to be the offered rate
on such other screen or service that displays an average British Bankers
Association Interest Settlement Rate for deposits in United States Dollars
(for delivery on the first day of such LIBOR Interest Period) for a term
equivalent to such LIBOR Interest Period as of 11:00 a.m. on the relevant
LIBOR Determination Date. If the rates referenced in the two preceding
sentences are not available, LIBOR for the relevant LIBOR Interest Period
will be determined by such alternate method or reasonably selected by
Lender. LIBOR shall be adjusted from time to time in Lender's sole
discretion for then-applicable reserve requirements, deposit insurance
assessment rates, marginal emergency, supplemental, special and other
reserve percentages, and other regulatory costs.
Loan Agreement: The Loan Agreement of even date herewith executed by
Lender and Borrower.
Loan Documents: This Note, the Deed of Trust, the Loan Agreement, the
Environmental Indemnity Agreement, any assignment of rents, any financing
statements, and such other agreements, documents and instruments now or
hereafter governing, securing or guaranteeing any portion of the
indebtedness evidenced by this Note, and/or the Related Indebtedness or
executed by Borrower or any other person or entity in connection with the
loan evidenced by this Note or in connection with the payment of the
indebtedness evidenced by this Note or the Related Indebtedness or the
performance and discharge of the obligations related hereto or thereto,
together with any and all renewals, modifications, amendments, restatements,
consolidations, substitutions, replacements, extensions and supplements
hereof or thereof.
Maturity Date: August 15, 2013.
Maximum Lawful Rate: The maximum lawful rate of interest which may be
contracted for, charged, taken, received or reserved by Lender in accordance
with the applicable laws of the State of Texas (or applicable United States
federal law to the extent that such law permits Lender to contract for,
charge, take, receive or reserve a greater amount of interest than under
Texas law), taking into account all Charges made in connection with the
transaction evidenced by this Note and the other Loan Documents.
Mortgaged Property: That certain real property located in Collin
County, Texas, as more particularly described in the Deed of Trust, together
with certain other rights, estates, interests, collateral and benefits now
or at any time hereafter securing the payment of the indebtedness evidenced
by this Note or the Related Indebtedness, whether by virtue of the Loan
Documents or otherwise.
Note: This Promissory Note.
Note Rate: The rate equal to the lesser of (a) the Maximum Lawful Rate
or (b) the Applicable Rate.
Payment Date: The fifteenth (15th) day of each and every calendar
month during the term of this Note and the last day of each LIBOR Interest
Period.
Prime Rate: The rate of interest announced from time to time by Lender
as its "base" or "prime" rate of interest, which Borrower hereby
acknowledges and agrees may not be the lowest interest rate charged by
Lender and is set by Lender in its sole discretion, changing when and as
said prime rate changes.
Related Indebtedness: Any and all indebtedness paid or payable by
Borrower to Lender pursuant to the Loan Documents or any other communication
or writing by or between Borrower and Lender related to the transaction or
transactions that are the subject matter of the Loan Documents, except such
indebtedness which has been paid or is payable by Borrower to Lender under
this Note.
Any capitalized term used in this Note and not otherwise defined herein
shall have the meaning ascribed to each such term in the Loan Agreement.
All terms used herein, whether or not defined in Section 1.1 hereof, and
whether used in singular or plural form, shall be deemed to refer to the
object of such term whether such is singular or plural in nature, as the
context may suggest or require.
ARTICLE II
PAYMENT TERMS
Section 2.1 PAYMENT OF PRINCIPAL AND INTEREST. Installments of
principal each in the amount of Twenty Two Thousand Nine Hundred
Sixteen and 67/100 Dollars ($22,916.67) plus accrued interest on
the unpaid balance hereof shall be due and payable monthly
commencing September 15, 2006 and continuing on each Payment Date
thereafter. The outstanding principal balance of this Note and
any and all accrued but unpaid interest hereon shall be due and
payable in full on the Maturity Date or upon the earlier maturity
hereof, whether by acceleration or otherwise.
Section 2.2 APPLICATION. Except as expressly provided herein to
the contrary, all payments on this Note shall be applied in the
following order of priority: (i) the payment or reimbursement of
any expenses, costs or obligations (other than the outstanding
principal balance hereof and interest hereon) for which either
Borrower shall be obligated or Lender shall be entitled pursuant
to the provisions of this Note or the other Loan Documents,
(ii) the payment of accrued but unpaid interest hereon, and
(iii) the payment of all or any portion of the principal balance
hereof then outstanding hereunder, in the direct order of
maturity. If an Event of Default exists under this Note or under
any of the other Loan Documents, then Lender may, at the sole
option of Lender, apply any such payments, at any time and from
time to time, to any of the items specified in clauses (i), (ii)
or (iii) above without regard to the order of priority otherwise
specified in this Section 2.2 and any application to the
outstanding principal balance hereof may be made in either direct
or inverse order of maturity.
Section 2.3 PAYMENTS. All payments under this Note made to Lender
shall be made in immediately available funds at 1807 Ross Avenue,
Suite 400, Dallas, Texas 75201 (or at such other place as Lender,
in Lender's sole discretion, may have established by delivery of
written notice thereof to Borrower from time to time), without
offset, in lawful money of the United States of America, which
shall at the time of payment be legal tender in payment of all
debts and dues, public and private. Payments by check or draft
shall not constitute payment in immediately available funds until
the required amount is actually received by Lender in full.
Payments in immediately available funds received by Lender in the
place designated for payment on a Business Day prior to 11:00 a.m.
Dallas, Texas time at said place of payment shall be credited
prior to the close of business on the Business Day received, while
payments received by Lender on a day other than a Business Day or
after 11:00 a.m. Dallas, Texas time on a Business Day shall not be
credited until the next succeeding Business Day. If any payment
of principal or interest on this Note shall become due and payable
on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day. Any such extension of time for
payment shall be included in computing interest which has accrued
and shall be payable in connection with such payment.
Section 2.4 RATE, ETC. Subject to the terms and conditions set
forth below, the unpaid principal of this Note shall bear interest
at the Note Rate. Borrower shall designate each LIBOR Interest
Period by giving Lender written notice of its selection before
11:00 a.m. (Dallas, Texas time) on the LIBOR Determination Date,
which selection shall be irrevocable, for each LIBOR Interest
Period. No LIBOR Interest Period may extend beyond the Maturity
Date. If Borrower shall fail to select a LIBOR Interest Period
the unpaid principal balance of this Note shall bear interest at
LIBOR plus the Applicable LIBOR Margin for successive LIBOR
Interest Periods of one month each until Borrower selects another
LIBOR Interest Period in accordance with the terms hereof. If an
Event of Default has occurred and is continuing, the option to
select LIBOR Interest Periods shall terminate, and this Note shall
bear interest in accordance with Section 2.9 of this Note. The
determination by Lender of the Note Rate shall, in the absence of
manifest error, be conclusive and binding in all respects.
Notwithstanding anything contained herein to the contrary, if (i)
at any time, Lender determines (which determination shall be
conclusive in the absence of manifest error) that any applicable
law or regulation or any change therein or the interpretation or
application thereof or compliance therewith by Lender (A)
prohibits, restricts or makes impossible the charging of interest
based on LIBOR or (B) shall make it unlawful for Lender to make or
maintain the indebtedness evidenced by this Note in eurodollars,
or (ii) at the time of or prior to the determination of LIBOR,
Lender determines (which determination shall be conclusive in the
absence of manifest error) that by reason of circumstances
affecting the London interbank market generally, (A) deposits in
United States Dollars in the relevant amounts and of the relevant
maturity are not available to Lender in the London interbank
market, (B) LIBOR does not adequately and fairly reflect the cost
to Lender of making or maintaining the loan, due to changes in
administrative costs, fees, tariffs and taxes and other matters
outside of Lender's reasonable control, or (C) adequate and fair
means do not or will not exist for determining LIBOR as set forth
in this Note, then Lender shall give Borrower prompt notice
thereof, and this Note shall bear interest, and continue to bear
interest until Lender determines that the applicable circumstance
described in the foregoing clauses (i) (A) or (B) or (ii) (A), (B)
or (C) no longer pertains, at the Base Rate (adjusted as may be
necessary by Lender to correspond as closely as possible to the
Applicable Rate existing on the date of Lender's determination set
forth in (i) or (ii) above), which Base Rate shall adjust from
time to time as and when the Prime Rate changes.
Section 2.5 COMPUTATION PERIOD. Interest on the indebtedness
evidenced by this Note shall be computed on the basis of a three
hundred sixty (360) day year and shall accrue on the actual number
of days elapsed for any whole or partial month in which interest
is being calculated. In computing the number of days during which
interest accrues, the day on which funds are initially advanced
shall be included regardless of the time of day such advance is
made, and the day on which funds are repaid shall be included
unless repayment is credited prior to the close of business on the
Business Day received as provided in Section 2.3 hereof.
Section 2.6 PREPAYMENT. Borrower shall have the right to prepay,
at any time and from time to time without fee, premium or penalty
(except as noted below), all or any portion of the outstanding
principal balance hereof, provided, however, that such prepayment
shall also include any and all accrued but unpaid interest on the
amount of principal being so prepaid through and including the
date of prepayment, plus any other sums which have become due to
Lender under the other Loan Documents on or before the date of
prepayment, but which have not been fully paid. Prepayments of
principal will be applied in the inverse order of stated maturity.
Section 2.7 UNCONDITIONAL PAYMENT. Borrower is and shall be
obligated to pay all principal, interest and any and all other
amounts which become payable under this Note or under any of the
other Loan Documents absolutely and unconditionally and without
any abatement, postponement, diminution or deduction whatsoever
and without any reduction for counterclaim or setoff whatsoever.
If at any time any payment received by Lender hereunder shall be
deemed by a court of competent jurisdiction to have been a
voidable preference or fraudulent conveyance under any Debtor
Relief Law, then the obligation to make such payment shall survive
any cancellation or satisfaction of this Note or return thereof to
Borrower and shall not be discharged or satisfied with any prior
payment thereof or cancellation of this Note, but shall remain a
valid and binding obligation enforceable in accordance with the
terms and provisions hereof, and such payment shall be immediately
due and payable upon demand.
Section 2.8 PARTIAL OR INCOMPLETE PAYMENTS. Remittances in
payment of any part of this Note other than in the required amount
in immediately available funds at the place where this Note is
payable shall not, regardless of any receipt or credit issued
therefor, constitute payment until the required amount is actually
received by Lender in full in accordance herewith and shall be
made and accepted subject to the condition that any check or draft
may be handled for collection in accordance with the practice of
the collecting bank or banks. Acceptance by Lender of any payment
in an amount less than the full amount then due shall be deemed an
acceptance on account only, and the failure to pay the entire
amount then due shall be and continue to be an Event of Default in
the payment of this Note.
Section 2.9 DEFAULT INTEREST RATE, ETC. For so long as any Event
of Default exists under this Note or under any of the other Loan
Documents, regardless of whether or not there has been an
acceleration of the indebtedness evidenced by this Note, and at
all times after the maturity of the indebtedness evidenced by this
Note (whether by acceleration or otherwise), and in addition to
all other rights and remedies of Lender hereunder, interest shall
accrue on the outstanding principal balance hereof at the Default
Interest Rate, and such accrued interest shall be immediately due
and payable. Borrower acknowledges that it would be extremely
difficult or impracticable to determine Lender's actual damages
resulting from any late payment or Event of Default, and such late
charges and accrued interest are reasonable estimates of those
damages and do not constitute a penalty.
ARTICLE III
EVENT OF DEFAULT AND REMEDIES
Section 3.1 EVENT OF DEFAULT. The occurrence or happening, at
any time and from time to time, of any event or condition which
constitutes an Event of Default under the Loan Agreement shall
immediately constitute an "Event of Default" under this Note.
Section 3.2 REMEDIES. Upon the occurrence of an Event of Default,
Lender shall have the immediate right, at the sole discretion of
Lender and without notice, demand, presentment, notice of
nonpayment or nonperformance, protest, notice of protest, notice
of intent to accelerate, notice of acceleration, or any other
notice or any other action (ALL OF WHICH BORROWER HEREBY EXPRESSLY
WAIVES AND RELINQUISHES) (i) to declare the entire unpaid balance
of the indebtedness evidenced by this Note (including, without
limitation, the outstanding principal balance hereof, including
all sums advanced or accrued hereunder or under any other Loan
Document, and all accrued but unpaid interest thereon) at once
immediately due and payable (and upon such declaration, the same
shall be at once immediately due and payable) and may be collected
forthwith, whether or not there has been a prior demand for
payment and regardless of the stipulated date of maturity, (ii) to
foreclose any liens and security interests securing payment hereof
or thereof (including, without limitation, any liens and security
interests covering any portion of the Mortgaged Property), and
(iii) to exercise any of Lender's other rights, powers, recourses
and remedies under this Note, under any other Loan Document, or at
law or in equity, and the same (w) shall be cumulative and
concurrent, (x) may be pursued separately, singly, successively,
or concurrently against Borrower or others obligated for the
repayment of this Note or any part hereof, or against any one or
more of them, or against the Mortgaged Property, at the sole
discretion of Lender, (y) may be exercised as often as occasion
therefor shall arise, it being agreed by Borrower that the
exercise, discontinuance of the exercise of or failure to exercise
any of the same shall in no event be construed as a waiver or
release thereof or of any other right, remedy, or recourse, and
(z) are intended to be, and shall be, nonexclusive. All rights
and remedies of Lender hereunder and under the other Loan
Documents shall extend to any period after the initiation of
foreclosure proceedings, judicial or otherwise, with respect to
the Mortgaged Property or any portion thereof. Without limiting
the provisions of Section 4.18 hereof, if this Note, or any part
hereof, is collected by or through an attorney-at-law, Borrower
agrees to pay all reasonable costs and expenses of collection,
including, but not limited to, Lender's reasonable attorneys'
fees, whether or not any legal action shall be instituted to
enforce this Note. This Note is also subject to acceleration as
provided in the Loan Agreement.
ARTICLE IV
GENERAL PROVISIONS
Section 4.1 NO WAIVER; AMENDMENT. No failure to accelerate the
indebtedness evidenced by this Note by reason of an Event of
Default hereunder, acceptance of a partial or past due payment, or
indulgences granted from time to time shall be construed (i) as a
novation of this Note or as a reinstatement of the indebtedness
evidenced by this Note or as a waiver of such right of
acceleration or of the right of Lender thereafter to insist upon
strict compliance with the terms of this Note, or (ii) to prevent
the exercise of such right of acceleration or any other right
granted under this Note, under any of the other Loan Documents or
by any applicable laws. Borrower hereby expressly waives and
relinquishes the benefit of any statute or rule of law or equity
now provided, or which may hereafter be provided, which would
produce a result contrary to or in conflict with the foregoing.
The failure to exercise any remedy available to Lender shall not
be deemed to be a waiver of any rights or remedies of Lender under
this Note or under any of the other Loan Documents, or at law or
in equity. No extension of the time for the payment of this Note
or any installment due hereunder, made by agreement with any
person now or hereafter liable for the payment of this Note, shall
operate to release, discharge, modify, change or affect the
original liability of Borrower under this Note, either in whole or
in part, unless Lender specifically, unequivocally and expressly
agrees otherwise in writing. This Note may not be changed orally,
but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, or modification is sought.
Section 4.2 WAIVERS. EXCEPT AS SPECIFICALLY PROVIDED IN THE LOAN
DOCUMENTS TO THE CONTRARY, BORROWER AND ANY ENDORSERS OR
GUARANTORS HEREOF SEVERALLY WAIVE AND RELINQUISH PRESENTMENT FOR
PAYMENT, DEMAND, NOTICE OF NONPAYMENT OR NONPERFORMANCE, PROTEST,
NOTICE OF PROTEST, NOTICE OF INTENT TO ACCELERATE, NOTICE OF
ACCELERATION OR ANY OTHER NOTICES OR ANY OTHER ACTION. BORROWER
AND ANY ENDORSERS OR GUARANTORS HEREOF SEVERALLY WAIVE AND
RELINQUISH, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO
THE BENEFITS OF ANY MORATORIUM, REINSTATEMENT, MARSHALING,
FORBEARANCE, VALUATION, STAY, EXTENSION, REDEMPTION, APPRAISEMENT,
EXEMPTION AND HOMESTEAD NOW OR HEREAFTER PROVIDED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF EACH
STATE THEREOF, BOTH AS TO ITSELF AND IN AND TO ALL OF ITS
PROPERTY, REAL AND PERSONAL, AGAINST THE ENFORCEMENT AND
COLLECTION OF THE OBLIGATIONS EVIDENCED BY THIS NOTE OR BY THE
OTHER LOAN DOCUMENTS.
Section 4.3 INTEREST PROVISIONS.
(a) Savings Clause. It is expressly stipulated and
agreed to be the intent of Borrower and Lender at all times
to comply strictly with the applicable Texas law governing
the maximum rate or amount of interest payable on the
indebtedness evidenced by this Note and the Related
Indebtedness (or applicable United States federal law to the
extent that it permits Lender to contract for, charge, take,
reserve or receive a greater amount of interest than under
Texas law). If the applicable law is ever judicially
interpreted so as to render usurious any amount
(i) contracted for, charged, taken, reserved or received
pursuant to this Note, any of the other Loan Documents or any
other communication or writing by or between Borrower and
Lender related to the transaction or transactions that are
the subject matter of the Loan Documents, (ii) contracted
for, charged, taken, reserved or received by reason of
Lender's exercise of the option to accelerate the maturity of
this Note and/or the Related Indebtedness, or (iii) Borrower
will have paid or Lender will have received by reason of any
voluntary prepayment by Borrower of this Note and/or the
Related Indebtedness, then it is Borrower's and Lender's
express intent that all amounts charged in excess of the
Maximum Lawful Rate shall be automatically canceled, ab
initio, and all amounts in excess of the Maximum Lawful Rate
theretofore collected by Lender shall be credited on the
principal balance of this Note and/or the Related
Indebtedness (or, if this Note and all Related Indebtedness
have been or would thereby be paid in full, refunded to
Borrower), and the provisions of this Note and the other Loan
Documents shall immediately be deemed reformed and the
amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as
to permit the recovery of the fullest amount otherwise called
for hereunder and thereunder; provided, however, if this Note
has been paid in full before the end of the stated term of
this Note, then Borrower and Lender agree that Lender shall,
with reasonable promptness after Lender discovers or is
advised by Borrower that interest was received in an amount
in excess of the Maximum Lawful Rate, either refund such
excess interest to Borrower and/or credit such excess
interest against this Note and/or any Related Indebtedness
then owing by Borrower to Lender. Borrower hereby agrees that
as a condition precedent to any claim seeking usury penalties
against Lender, Borrower will provide written notice to
Lender, advising Lender in reasonable detail of the nature
and amount of the violation, and Lender shall have sixty (60)
days after receipt of such notice in which to correct such
usury violation, if any, by either refunding such excess
interest to Borrower or crediting such excess interest
against this Note and/or the Related Indebtedness then owing
by Borrower to Lender. All sums contracted for, charged,
taken, reserved or received by Lender for the use,
forbearance or detention of any debt evidenced by this Note
and/or the Related Indebtedness shall, to the extent
permitted by applicable law, be amortized or spread, using
the actuarial method, throughout the stated term of this Note
and/or the Related Indebtedness (including any and all
renewal and extension periods) until payment in full so that
the rate or amount of interest on account of this Note and/or
the Related Indebtedness does not exceed the Maximum Lawful
Rate from time to time in effect and applicable to this Note
and/or the Related Indebtedness for so long as debt is
outstanding. In no event shall the provisions of Chapter 346
of the Texas Finance Code (which regulates certain revolving
credit loan accounts and revolving triparty accounts) apply
to this Note and/or any of the Related Indebtedness.
Notwithstanding anything to the contrary contained herein or
in any of the other Loan Documents, it is not the intention
of Lender to accelerate the maturity of any interest that has
not accrued at the time of such acceleration or to collect
unearned interest at the time of such acceleration.
(b) Ceiling Election. To the extent that Lender is
relying on Chapter 303 of the Texas Finance Code to determine
the Maximum Lawful Rate payable on the Note and/or any other
portion of the Indebtedness, Lender will utilize the weekly
ceiling from time to time in effect as provided in such
Chapter 303, as amended. To the extent United States federal
law permits Lender to contract for, charge, take, receive or
reserve a greater amount of interest than under Texas law,
Lender will rely on United States federal law instead of such
Chapter 303 for the purpose of determining the Maximum Lawful
Rate. Additionally, to the extent permitted by applicable
law now or hereafter in effect, Lender may, at its option and
from time to time, utilize any other method of establishing
the Maximum Lawful Rate under such Chapter 303 or under other
applicable law by giving notice, if required, to Borrower as
provided by applicable law now or hereafter in effect.
Section 4.4 USE OF FUNDS. Borrower hereby warrants, represents
and covenants that (i) the loan evidenced by this Note is made to
Borrower solely for the purpose of acquiring or carrying on a
business or commercial enterprise, (ii) all proceeds of this Note
shall be used only for business and commercial purposes, and (iii)
no funds disbursed hereunder shall be used for personal, family,
agricultural or household purposes.
Section 4.5 FURTHER ASSURANCES AND CORRECTIONS. From time to time,
at the request of Lender, Borrower will (i) promptly correct any
defect, error or omission which may be discovered in the contents
of this Note or in any other Loan Document or in the execution or
acknowledgment thereof; (ii) execute, acknowledge, deliver, record
and/or file (or cause to be executed, acknowledged, delivered,
recorded and/or filed) such further documents and instruments
(including, without limitation, further deeds of trust, security
agreements, financing statements, continuation statements and
assignments of rents) and perform such further acts and provide
such further assurances as may be necessary, desirable, or proper,
in Lender's opinion, (A) to carry out more effectively the
purposes of this Note and the Loan Documents and the transactions
contemplated hereunder and thereunder, (B) to confirm the rights
created under this Note and the other Loan Documents, (C) to
protect and further the validity, priority and enforceability of
this Note and the other Loan Documents and the liens and security
interests created thereby, and (D) to subject to the Loan
Documents any property of Borrower intended by the terms of any
one or more of the Loan Documents to be encumbered by the Loan
Documents; and (iii) pay all costs in connection with any of the
foregoing.
Section 4.6 WAIVER OF JURY TRIAL. BORROWER, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY KNOWINGLY, INTENTIONALLY,
IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY, WITH AND UPON THE
ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER
FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS NOTE OR
ANY CONDUCT, ACT OR OMISSION OF LENDER OR BORROWER, OR ANY OF
THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR
ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER OR
BORROWER, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE.
Section 4.7 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Note
is executed and delivered as an incident to a lending transaction
negotiated and consummated in Dallas County, Texas, and shall be
governed by and construed in accordance with the laws of the State
of Texas. Borrower, for itself and its successors and assigns,
hereby irrevocably (i) submits to the nonexclusive jurisdiction of
the state and federal courts in Texas, (ii) waives, to the fullest
extent permitted by law, any objection that it may now or in the
future have to the laying of venue of any litigation arising out
of or in connection with this Note or any Loan Document brought in
the District Court of Dallas County, Texas, or in the United
States District Court for the Northern District of Texas,
(iii) waives any objection it may now or hereafter have as to the
venue of any such action or proceeding brought in such court or
that such court is an inconvenient forum, and (iv) agrees that any
legal proceeding against any party to any of the Loan Documents
arising out of or in connection with any of the Loan Documents may
be brought in one of the foregoing courts. Borrower hereby agrees
that service of process upon Borrower may be made by certified or
registered mail, return receipt requested, at its address
specified herein. Nothing herein shall affect the right of Lender
to serve process in any other manner permitted by law or shall
limit the right of Lender to bring any action or proceeding
against Borrower or with respect to any of Borrower's property in
courts in other jurisdictions. The scope of each of the foregoing
waivers is intended to be all encompassing of any and all disputes
that may be filed in any court and that relate to the subject
matter of this transaction, including, without limitation,
contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims. Borrower acknowledges that these
waivers are a material inducement to Lender's agreement to enter
into the agreements and obligations evidenced by the Loan
Documents, that Lender has already relied on these waivers and
will continue to rely on each of these waivers in related future
dealings. The waivers in this Section 4.7 are irrevocable,
meaning that they may not be modified either orally or in writing,
and these waivers apply to any future renewals, extensions,
amendments, modifications, or replacements in respect of any and
all of the applicable Loan Documents. In connection with any
litigation, this Note may be filed as a written consent to a trial
by the court.
Section 4.8 COUNTING OF DAYS. If any time period referenced
hereunder ends on a day other than a Business Day, such time
period shall be deemed to end on the next succeeding Business Day.
Section 4.9 RELATIONSHIP OF THE PARTIES. Notwithstanding any prior
business or personal relationship between Borrower and Lender, or
any officer, director or employee of Lender, that may exist or
have existed, the relationship between Borrower and Lender is
solely that of debtor and creditor, Lender has no fiduciary or
other special relationship with Borrower, Borrower and Lender are
not partners or joint venturers, and no term or condition of any
of the Loan Documents shall be construed so as to deem the
relationship between Borrower and Lender to be other than that of
debtor and creditor.
Section 4.10 SUCCESSORS AND ASSIGNS. The terms and provisions
hereof shall be binding upon and inure to the benefit of Borrower
and Lender and their respective heirs, executors, legal
representatives, successors, successors-in-title and assigns,
whether by voluntary action of the parties, by operation of law or
otherwise, and all other persons claiming by, through or under
them. The terms "Borrower" and "Lender" as used hereunder shall
be deemed to include their respective heirs, executors, legal
representatives, successors, successors-in-title and assigns,
whether by voluntary action of the parties, by operation of law or
otherwise, and all other persons claiming by, through or under
them.
Section 4.11 JOINT AND SEVERAL LIABILITY. If Borrower consists
of more than one person or entity, each shall be jointly and
severally liable to perform the obligations of Borrower under this
Note.
Section 4.12 TIME IS OF THE ESSENCE. Time is of the essence with
respect to all provisions of this Note and the other Loan
Documents.
Section 4.13 HEADINGS. The Article, Section, and Subsection
entitlements hereof are inserted for convenience of reference only
and shall in no way alter, modify, define, limit, amplify or be
used in construing the text, scope or intent of such Articles,
Sections, or Subsections or any provisions hereof.
Section 4.14 CONTROLLING AGREEMENT. In the event of any conflict
between the provisions of this Note and the Deed of Trust, it is
the intent of the parties hereto that the provisions of the Loan
Agreement shall control. In the event of any conflict between
the provisions of this Note and any of the other Loan Documents
(other than the Loan Agreement), it is the intent of the parties
hereto that the provisions of this Note shall control. The
parties hereto acknowledge that they were represented by competent
counsel in connection with the negotiation, drafting and execution
of this Note and the other Loan Documents and that this Note and
the other Loan Documents shall not be subject to the principle of
construing their meaning against the party which drafted same.
Section 4.15 NOTICES. All notices or other communications required
or permitted to be given pursuant to this Note shall be in writing
and shall be considered as properly given if (i) mailed by first
class United States mail, postage prepaid, registered or certified
with return receipt requested, (ii) by delivering same in person
to the intended addressee, (iii) by delivery to a reputable
independent third party commercial delivery service for same day
or next day delivery and providing for evidence of receipt at the
office of the intended addressee, or (iv) by prepaid telegram,
telex, telecopier or telefacsimile transmission to the addressee.
Notice so mailed shall be effective upon its deposit with the
United States Postal Service or any successor thereto; notice sent
by such a commercial delivery service shall be effective upon
delivery to such commercial delivery service; notice given by
personal delivery shall be effective only if and when received by
the addressee; and notice given by other means shall be effective
only if and when received at the office or designated place or
machine of the intended addressee. For purposes of notice, the
addresses of the parties shall be as set forth herein; provided,
however, that either party shall have the right to change its
address for notice hereunder to any other location within the
continental United States by the giving of thirty (30) days' prior
notice to the other party in the manner set forth herein.
Section 4.16 SEVERABILITY. If any provision of this Note or the
application thereof to any person or circumstance shall, for any
reason and to any extent, be invalid or unenforceable, then
neither the remainder of this Note nor the application of such
provision to other persons or circumstances nor the other
instruments referred to herein shall be affected thereby, but
rather shall be enforced to the greatest extent permitted by
applicable law.
Section 4.17 RIGHT OF SETOFF. In addition to all liens upon and
rights of setoff against the money, securities, or other property
of Borrower given to Lender that may exist under applicable law,
Lender shall have and Borrower hereby grants to Lender a lien upon
and a right of setoff against all money, securities, and other
property of Borrower, now or hereafter in possession of or on
deposit with Lender, whether held in a general or special account
or deposit, for safe-keeping or otherwise, and every such lien and
right of setoff may be exercised without demand upon or notice to
Borrower. No lien or right of setoff shall be deemed to have been
waived by any act or conduct on the part of Lender, or by any
neglect to exercise such right of setoff or to enforce such lien,
or by any delay in so doing, and every right of setoff and lien
shall continue in full force and effect until such right of setoff
or lien is specifically waived or released by an instrument in
writing executed by Lender.
Section 4.18 COSTS OF COLLECTION. If any holder of this Note
retains an attorney-at-law in connection with any Event of Default
or at maturity or to collect, enforce, or defend this Note or any
part hereof, or any other Loan Document in any lawsuit or in any
probate, reorganization, bankruptcy or other proceeding, or if
Borrower sues any holder in connection with this Note or any other
Loan Document and does not prevail, then Borrower agrees to pay to
each such holder, in addition to the principal balance hereof and
all interest hereon, all reasonable costs and expenses of
collection or incurred by such holder or in any such suit or
proceeding, including, but not limited to, reasonable attorneys'
fees.
Section 4.19 GENDER. All personal pronouns used herein, whether
used in the masculine, feminine or neuter gender, shall include
all other genders; the singular shall include the plural and vice
versa.
Section 4.20 STATEMENT OF UNPAID BALANCE. At any time and from
time to time, Borrower will furnish promptly, upon the request of
Lender, a written statement or affidavit, in form satisfactory to
Lender, stating the unpaid balance of the indebtedness evidenced
by this Note and the Related Indebtedness and that there are no
offsets or defenses against full payment of the indebtedness
evidenced by this Note and the Related Indebtedness and the terms
hereof, or if there are any such offsets or defenses, specifying
them.
Section 4.21 ENTIRE AGREEMENT. THIS NOTE AND THE OTHER LOAN
DOCUMENTS CONTAIN THE FINAL, ENTIRE AGREEMENT BETWEEN THE PARTIES
HERETO RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND ALL
PRIOR AGREEMENTS, WHETHER WRITTEN OR ORAL, RELATIVE HERETO AND
THERETO WHICH ARE NOT CONTAINED HEREIN OR THEREIN ARE SUPERSEDED
AND TERMINATED HEREBY, AND THIS NOTE AND THE OTHER LOAN DOCUMENTS
MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF
THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG
THE PARTIES HERETO.
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IN WITNESS WHEREOF, Borrower, intending to be legally bound hereby, has
duly executed this Note as of the day and year first written above.
BORROWER:
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BEST CIRCUIT BOARDS, INC.
a Texas corporation
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
INTEGRATED PERFORMANCE SYSTEMS, INC.,
a New York corporation
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
GLOBAL INNOVATION CORP.,
a Delaware corporation
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address of Lender for purposes
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of notice hereunder:
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1807 Ross Avenue, Suite 400
Dallas, Texas 75201