Exhibit 10.13
TERM NOTE A
(Machinery & Equipment)
Executed as of the 23rd day of
January, 1997 at Baltimore, Maryland
Amount: $775,000.00
FOR VALUE RECEIVED, the undersigned ("Borrower") promises to
pay to the order of LASALLE BUSINESS CREDIT, INC. (hereinafter, together with
any holder hereof, called "LaSalle"), at the main office of the LaSalle, the
principal sum of Seven Hundred Seventy-Five Thousand Dollars ($775,000.00),
together with interest on the outstanding principal amount hereof on the dates
and at the rates provided in the Loan Agreement (as hereafter defined) from the
date hereof until payment in full hereof.
This Term Note is referred to in and was delivered pursuant to
paragraph 3(a) of that certain Loan and Security Agreement dated January ___,
1997, as it may be amended from time to time, together with all exhibits
thereto, between LaSalle and Borrower (the "Loan Agreement"). All terms which
are capitalized and used herein (which are not otherwise defined herein) shall
have the meanings ascribed to such terms in the Loan Agreement.
For so long as no Event of Default shall have occurred under
the Loan Agreement, the principal amount and accrued interest of this Note shall
be due and payable on the dates and in the manner hereinafter set forth:
(a) Interest shall be due and payable monthly, in
arrears, on the first day of each month, commencing on
February 1, 1997, and continuing until such time as the full
principal balance, together with all other amounts owing
hereunder, shall have been paid in full;
(b) Commencing on March 1, 1997, and continuing on
the first day of each month thereafter to and including the
first day of December, 1999, principal payments in the amount
of Nine Thousand Two Hundred Twenty-Six Dollars ($9,226.00)
each; and
(c) On February 1, 2000, a final principal payment
equal to the entire unpaid principal balance hereof, together
with any and all other amounts due hereunder.
Notwithstanding the foregoing, the entire unpaid principal balance and accrued
interest on this Note shall be due and payable immediately upon any termination
of the Loan Agreement.
Borrower hereby authorizes LaSalle to charge any account of
Borrower for all sums due hereunder. If payment hereunder becomes due and
payable on a Saturday, Sunday or legal holiday under the laws of the United
States or the State of Illinois, the due date thereof shall be extended to the
next succeeding business day, and interest shall be payable thereon at the rate
specified during such extension. Credit shall be given for payments made in the
manner and at the times provided in the Loan Agreement. It is the intent of the
parties that the rate of interest and other charges to Borrower under this Note
shall be lawful; therefore, if for any reason the interest or other charges
payable hereunder are found by a court of competent jurisdiction, in a final
determination, to exceed the limit which LaSalle may lawfully charge Borrower,
then the obligation to pay interest or other charges shall automatically be
reduced to such limit and, if any amount in excess of such limit shall have been
paid, then such amount shall be refunded to Borrower.
The principal and all accrued interest hereunder may be
prepaid by Borrower, in part or in full, at any time; provided, however, that if
Borrower prepays all of the Obligations prior to the end of the Original Term or
any Renewal Term, Borrower shall pay a prepayment fee as provided in the Loan
Agreement.
Borrower waives the benefit of any law that would otherwise
restrict or limit LaSalle in the exercise of its right, which is hereby
acknowledged, to set-off against the Obligations, without notice and at any time
hereafter, any indebtedness matured or unmatured owing from LaSalle to Borrower.
Borrower's obligations under this Note shall be the absolute and unconditional
duty and obligation of the Borrower and shall be independent of any rights of
set-off, recoupment or counterclaim which Borrower might otherwise have against
LaSalle, and Borrower shall pay absolutely the payments of principal, interest,
fees and expenses required hereunder, free of any deductions and without
abatement, diminution or set-off.
Time is of the essence of this Note. Borrower, any other party
liable with respect to the Obligations and any and all endorsers and
accommodation parties, and each one of them, if more than one, waive any and all
presentment, demand, notice of dishonor, protest, and all other notices and
demands in connection with the enforcement of LaSalle's rights hereunder.
Upon the occurrence of an Event of Default, including without
limitation the failure to pay in full any installment of principal or interest
on the due date thereof or the failure to pay all sums due hereunder upon the
maturity date, in addition to all other rights or remedies available to LaSalle
under the Loan Agreement or any Other Agreement or under applicable law,
Borrower authorizes any attorney admitted to practice before any court of record
in the United States to appear on behalf of Borrower in any court in one or more
proceedings, or before any clerk thereof or prothonotary or other court
official, and to confess judgment against Borrower in favor of LaSalle in the
full amount due on this Note (including principal, accrued interest and any and
all charges, fees and costs), plus attorneys' fees equal to fifteen
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percent (15%) of the amount due, plus court costs, all without prior notice or
opportunity of Borrower for prior hearing. Borrower agrees and consents that
venue and jurisdiction shall be proper in the Circuit Court of any County of the
State of Maryland or of Baltimore City, Maryland, or in the United States
District Court for the District of Maryland. Borrower waives the benefit of any
and every statute, ordinance, or rule of court which may be lawfully waived
conferring upon Borrower any right or privilege of exemption, homestead rights,
stay of execution, or supplementary proceedings, or other relief from the
enforcement or immediate enforcement of a judgment or related proceedings on a
judgment. The authority and power to appear for and enter judgment against
Borrower shall not be exhausted by one or more exercises thereof, or by any
imperfect exercise thereof, and shall not be extinguished by any judgment
entered pursuant thereto; such authority and power may be exercised on one or
more occasions from time to time, in the same or different jurisdictions, as
often as LaSalle shall deem necessary, convenient, or proper. Notwithstanding
LaSalle's right to obtain a judgment by confession which includes attorneys'
fees in an amount equal to fifteen percent (15%) of the amount due hereunder,
LaSalle shall only collect attorneys' fees in an amount equal to the actual
legal fees and expenses incurred by LaSalle in connection with the collection of
the sums due under this Revolving Loan Note and the enforcement of LaSalle's
rights under this Revolving Loan Note and the Loan Agreement.
No delay or failure on the part of LaSalle in the exercise of
any right or remedy hereunder shall operate as a waiver thereof, nor as an
acquiescence in any default, nor shall any single or partial exercise by LaSalle
of any right or remedy preclude any other right or remedy. LaSalle, at its
option, may enforce its rights against any collateral securing this Note without
enforcing its rights against Borrower, any guarantor of the indebtedness
evidenced hereby or any other property or indebtedness due or to become due to
Borrower. Borrower agrees that, without releasing or impairing Borrower's
liability hereunder, LaSalle may at any time release, surrender, substitute or
exchange any collateral securing this Note and may at any time release any party
primarily or secondarily liable for the indebtedness evidenced by this Note.
The loan evidenced hereby has been made and this Note shall be
deemed to have been delivered at Baltimore, Maryland. THIS NOTE SHALL BE
GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF MARYLAND AS TO
INTERPRETATION, ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT, AND IN ALL OTHER
RESPECTS, INCLUDING WITHOUT LIMITATION, THE LEGALITY OF THE INTEREST RATE AND
OTHER CHARGES, and shall be binding upon Borrower and Borrower's heirs, legal
representatives, successors and assigns. If this Note contains any blanks when
executed by Borrower, LaSalle is hereby authorized, without notice to Borrower
to complete any such blanks according to the terms upon which the loan or loans
were granted. Wherever possible, each provision of this Note shall be
interpreted in such
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manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or be invalid under such law, such provision
shall be severable, and be ineffective to the extent of such prohibition or
invalidity, without invalidating the remaining provisions of this Note. If more
than one party shall execute this Note, the term "Borrower" as used herein shall
mean all parties signing this Note, and each one of them, and all such parties,
their respective heirs, executors, administrators, successors and assigns, shall
be jointly and severally obligated hereunder.
To induce LaSalle to make the loan evidenced by this Note,
Borrower (i) irrevocably agrees that, subject to LaSalle's sole and absolute
election, all actions arising directly or indirectly as a result or in
consequence of this Note or any other agreement with LaSalle, or the Collateral,
shall be instituted and litigated only in courts having situs in the State of
Maryland, (ii) hereby consents to the exclusive jurisdiction and venue of any
State or Federal Court located and having its situs in said state, and (iii)
hereby waives any objection based on forum non-conveniens. Borrower waives
personal service of any and all process, and consents that all such service of
process may be made by certified mail, return receipt requested, directed to
Borrower at the address indicated in the Loan Agreement, and service so made
shall be complete five (5) days after the same has been deposited in the U.S.
mails as aforesaid.
IN ADDITION, BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS NOTE, THE OBLIGATIONS,
THE COLLATERAL, ANY ALLEGED TORTIOUS CONDUCT BY BORROWER OR LASALLE, OR WHICH IN
ANY WAY, DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP
BETWEEN BORROWER AND LASALLE.
As used herein, all provisions shall include the masculine,
feminine, neuter, singular and plural thereof, wherever the context and facts
require such construction and in particular the word "Borrower" shall be so
construed.
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IN WITNESS WHEREOF, Borrower has executed this Note on the
date above set forth, with the intention that this Note constitute an instrument
under seal.
ATTEST: THE ANTIGUA GROUP, INC.,
A Nevada Corporation
/s/ Joseph R.S. Tyssowski By: /s/ T.E. Dooley (SEAL)
Name: T.E. Dooley
Title: CEO
ACKNOWLEDGEMENT
STATE OF MARYLAND, CITY OF BALTIMORE, TO WIT:
I HEREBY CERTIFY that on this 23rd day of January, 1997, before me,
the undersigned Notary Public of the State of Maryland, in and for the County of
Howard, personally appeared T.E. Dooley, and acknowledged himself to be the CEO
of THE ANTIGUA GROUP, INC., a Nevada corporation, and that he, as the CEO being
authorized so to do, executed the foregoing instrument for the purposes therein
contained by signing the name of THE ANTIGUA GROUP, INC., by himself as CEO.
IN WITNESS MY Hand and Notarial Seal.
/s/ Cynthia L. Woods (SEAL)
NOTARY PUBLIC
My Commission Expires:
9/1/97
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FOR INTERNAL USE ONLY
Officer's Initials: __________
Approval: __________
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