EXHIBIT 4.7
ANNEX A
SECURED PROMISSORY NOTE
$2,500,000
New York, New York
October 29, 2001
FOR VALUE RECEIVED, the undersigned, AMPEX DATA SYSTEMS CORPORATION, a
Delaware corporation ("Borrower"), hereby promises to pay to the order of
SHERBORNE & COMPANY INCORPORATED, a Delaware corporation ("Lender"), at the
office of Lender at 135 East 57th Street, New York, New York 10022, on March 31,
2002, the aggregate unpaid principal amount of all loans advanced by Lender to
Borrower pursuant to the Loan Agreement, dated as of October 29, 2001 (the "Loan
Agreement"), between Lender and Borrower, in lawful money of the United States
of America in immediately available funds, and to pay interest from the date
hereof on such principal amount hereof from time to time outstanding, in like
funds, at said office, at a rate or rates per annum and payable on such dates as
determined pursuant to the Loan Agreement. The principal amount outstanding
hereunder may be prepaid by Borrower at any time without premium or penalty.
This Note is secured by a lien and security interest in certain
"Collateral" owned by Borrower and more fully specified in the Security
Agreement, of even date herewith, between Borrower and Lender, and is
unconditionally guaranteed by Ampex Corporation, a Delaware corporation and the
corporate parent of Borrower ("Guarantor"), pursuant to a Guarantee Agreement,
of even date herewith, between Lender and Guarantor.
This Note shall become immediately due and payable without any further
action by Lender upon the occurrence and continuance beyond any applicable grace
period of any Event of Default (as defined in the Loan Agreement).
Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever; the non-exercise by the holder of any of its
rights hereunder in any particularly instance shall not constitute a waiver
thereof in that or any subsequent instance. Borrower hereby waives any rights
which it may have hereunder to setoff its obligations to Lender hereunder
against any other obligations of Lender from time to time owed to Borrower.
All loans evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof, or on
a continuation thereof which shall be attached hereto and made part hereof, but
failure to make any such endorsement shall not affect Borrower's obligation to
repay all loans hereunder.
Borrower agrees to pay or reimburse Lender for any and all costs and
expenses which Lender may incur in the collection or enforcement of this Note
upon an Event of Default including reasonable attorneys fees and disbursements.
All notices, requests, demands and other communications to any party
provided for or permitted hereunder shall, unless otherwise stated herein, be in
writing and shall be sent by certified mail, postage prepaid and return receipt
requested, by telex, telegram or facsimile; by nationally recognized overnight
courier service; or by hand delivery, in each case to such party at its address
set forth in the Loan Agreement, or at such other address as such party may
designate by written notice to the other in accordance with this provision, and
shall be deemed to have been given or made: if by certified mail, return receipt
requested, five (5) days after mailing; if by telex, telegram or facsimile,
immediately upon sending and upon confirmation of receipt; if by nationally
recognized overnight courier service with instructions to deliver the next
business day, one (1) business day after sending; and if by hand, immediately
upon personal delivery.
In case any provision of this Note shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, CLAIM, DEMAND OR CAUSE OF ACTION BY
LENDER ARISING UNDER, IN CONNECTION WITH OR OTHERWISE RELATING TO THIS NOTE,
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE. BORROWER HEREBY AGREES AND CONSENTS THAT LENDER MAY FILE AN
ORIGINAL COUTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THIS CONSENT BY BORROWER TO THE WAIVER OF ITS RIGHTS TO TRIAL BY
JURY.
Borrower hereby irrevocably submits to the jurisdiction of any New York
State or Federal court sitting in the Borough of Manhattan, The City of New
York, in any action or proceeding arising out of or relating to this Note, and
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State or Federal court.
Borrower hereby irrevocably waives, to the fullest extent it may effectively do
so, the defense of an inconvenient forum to the maintenance of such action or
proceeding. Borrower also irrevocably consents to the service of copies of the
summons and complaint and any other process which may be served in any such
action or proceeding by the mailing or delivery of a copy of such
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process to such party at its address for notice specified herein by certified
mail, return receipt requested. Nothing contained in this paragraph shall affect
the rights of Borrower or Lender to serve legal process in any other manner
permitted by law or to bring any action or proceeding against the other party or
its property in the courts of any other jurisdictions.
The validity, interpretation and enforcement of this Note shall be
governed by the internal laws of the State of New York (without giving effect to
principles of conflicts of law).
AMPEX DATA SYSTEMS CORPORATION
By: /s/Craig L. McKibben
--------------------------------
Name: Craig L. McKibben
Title: Vice President
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Advances and Payments
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Unpaid Name of
Principal Person
Amount of Payments Balance Making
Date Advance Principal Interest of Note Notation
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