Exhibit 10.3
TERM NOTE
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$15,000,000.00 U.S. Manchester, New Hampshire
December 26, 1997
1. Promise To Pay.
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FOR VALUE RECEIVED, WPI GROUP, INC., WPI ELECTRONICS, INC., WPI MAGNETEC,
INC., WPI MICRO PALM, INC., WPI POWER SYSTEMS, INC., WPI TERMIFLEX, INC., WPI
MICRO PROCESSOR SYSTEMS, INC., and WPI DECISIONKEY, INC., WPI UK HOLDING, INC.,
WPI UK HOLDING II, INC., and WPI OYSTER TERMINALS, INC., each a New Hampshire
corporation, and WPI HUSKY COMPUTERS, INC., a Florida corporation, all such
corporations having executive offices at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (all of such corporations are hereinafter referred to
individually and collectively as the "Borrower"), jointly and severally promise
to pay to the order of FLEET BANK-NH, a bank organized under the laws of New
Hampshire, having an address at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
("Lender"), the principal sum of Fifteen Million and 00/100 ($15,000,000.00)
DOLLARS, with interest thereon, or on the amount thereof from time to time
outstanding, to be computed, as hereinafter provided, until such principal sum
shall be fully paid. Interest and principal shall be payable in installments as
set forth in Section 4 below. The total principal sum, or the amount thereof
outstanding, together with any accrued but unpaid interest, shall be due and
payable in full on March 31, 2002 ("Maturity Date").
2. Loan Agreement.
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This Note is issued pursuant to the terms, provisions and conditions of an
agreement captioned "Amended and Restated Commercial Loan Agreement" dated as of
December 26, 1997 between Borrower and Lender, as the same may be amended from
time to time hereafter (the "Loan Agreement"), and evidences the Term Loan made
pursuant thereto (herein, the "Loan"). Capitalized terms used herein which are
not otherwise specifically defined shall have the same meaning herein as in the
Loan Agreement.
3. Interest Rate.
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Principal amounts outstanding under the Loan shall bear interest at the
LIBOR Interest Rate, subject to the conditions and limitations provided for in
this Note, during the period from the date hereof up to and including the
Maturity Date.
4. Payment of Interest and Principal.
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4.1. Payment and Calculation of Interest. All interest shall be: (a)
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payable in arrears commencing January 1, 1998 and continuing on the same day of
each month thereafter until the principal together with all interest and other
charges payable with respect to the Loan shall be
fully paid; and (b) calculated on the basis of a 360 day year and the actual
number of days elapsed. Interest at the LIBOR Interest Rate shall be computed
from and including the first day of the applicable Interest Period to, but
excluding, the last day thereof.
4.2. Principal. Principal shall be repaid in quarterly installments of
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$750,000, commencing on October 1, 1998 and continuing on the first day of each
January, April, July and October thereafter. The entire principal balance shall
be due and payable in full upon Maturity.
4.3. Prepayment. The Loan or any portion thereof may be prepaid in full
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or in part at any time upon fifteen (15) days' prior written notice to the
holder of this Note, provided that with respect to LIBOR Rate Advances, any
prepayment, whether partial or in full, shall be subject to a make-whole
provision and payment of a Yield Maintenance Fee as provided below. Any
partial prepayment of principal shall first be applied to any installment of
principal then due and shall then be applied to the principal installments due
in the reverse order of maturity, and no such partial prepayment shall relieve
Borrower of the obligation to pay each subsequent installment of principal when
due.
4.4. Maturity. At Maturity all accrued interest, principal and other
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charges due with respect to the Loan shall be due and payable in full and the
principal balance and such other charges, but not unpaid interest, shall
continue to bear interest at the Default Rate until so paid.
4.5. Method of Payment; Date of Credit. All payments of interest,
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principal and fees shall be made in lawful money of the United States in
immediately available funds: (a) by direct charge to an account of Borrower
maintained with Lender (or the then holder of this Note), (b) by wire transfer
to Lender, (c) by check payable to Lender and delivered to Lender at ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, or (d) to such other bank or address as the
holder of this Note may designate in a written notice to Borrower. Payments
shall be credited on the Business Day on which immediately available funds are
received prior to one o'clock P.M. Eastern Time; payments received after one
o'clock P.M. Eastern Time shall be credited to the Loan on the next Business
Day. Payments which are by check, which Lender may at its option accept or
reject, or which are not in the form of immediately available funds shall not be
credited to the Loan until such funds become immediately available to Lender,
and, with respect to payments by check, such credit shall be provisional until
the item is finally paid by the payor bank.
4.6. Billings. Lender may submit monthly ▇▇▇▇▇▇▇▇ reflecting payments
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due; however, any changes in the interest rate which occur between the date of
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billing and the due date may be reflected in the billing for a subsequent month.
Neither the failure of Lender to submit a billing nor any error in any such
billing shall excuse Borrower from the obligation to make full payment of all
Borrower's payment obligations when due.
4.7. Default Rate. Lender shall have the option of imposing, and Borrower
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shall pay upon billing therefor, an interest rate which is five percent (5%) per
annum above the interest rate otherwise payable ("Default Rate"): (a) while any
monetary Default exists and is continuing, during that period between the due
date and the date of payment; (b) following any Event of Default, unless and
until the Event of Default is waived by Lender; and (c) after Maturity.
4.8. Late Charges. Borrower shall pay, upon billing therefor, a "Late
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Charge" equal to five percent (5%) of the amount of any payment of principal,
other than principal due at Maturity,
interest, or both, which is not paid within ten (10) days of the due date
thereof. Late charges are: (a) payable in addition to, and not in limitation of,
the Default Rate, (b) intended to compensate Lender for administrative and
processing costs incident to late payments, (c) are not interest, and (d) shall
not be subject to refund or rebate or credited against any other amount due.
4.9. Calculation of Yield Maintenance Fee.
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(i) The Yield Maintenance Fee shall be calculated separately for each
installment of principal due prior to the Maturity Date, as well as the entire
balance of principal due at the Maturity Date (including any effective extension
thereof) all in accordance with the following:
(A) If the Treasury Rate is greater than the applicable LIBOR Interest
Rate, there shall be no Yield Maintenance Fee payable for such installment
or balance.
(B) If the Treasury Rate is less than the applicable LIBOR Interest
Rate, the Yield Maintenance Fee shall equal the aggregate of all Present
Values, computed separately for each installment or balance having a
separate due date, of the product of:
1. the amount of each installment or balance so prepaid,
multiplied by
2. the amount by which the LIBOR Interest Rate, expressed as a
percentage, exceeds the Treasury Rate, expressed as a percentage,
computed separately for each installment or balance having a different
maturity date, and
3. which product in turn shall be multiplied by a fraction,
computed separately for each installment or balance having a different
due date, the numerator of which is the number of days from the date
of prepayment to the due date of the installment or balance and the
denominator of which is 360.
(ii) Neither all nor any portion of the principal which bears interest at
the LIBOR Interest Rate may or shall be prepaid prior to the last day of the
applicable Interest Period, except upon fifteen (15) days' prior written notice
to ▇▇▇▇▇▇ and the payment to Lender of a Yield Maintenance Fee computed in
accordance with clause (i) above.
(iii) The Yield Maintenance Fee shall be payable in respect of all
prepayments of principal whether voluntary or involuntary including, without
limitation, prepayments made upon acceleration of the Loan, or application of
insurance or eminent domain proceeds.
(iv) Once written notice of intention to prepay is given, the Loan, or the
applicable portion thereof, shall become due and payable in full on the date
specified in the notice of prepayment and the failure to so prepay the Loan on
such date, together with any applicable Yield Maintenance Fee, shall constitute
an Event of Default.
4.10. Make Whole Provision. Borrower shall pay to Lender, immediately
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upon request and notwithstanding contrary provisions contained in any of the
Loan Documents, such amounts as shall, in the conclusive judgment of Lender (in
the absence of manifest error), compensate Lender for the loss, cost or expense
which it may reasonably incur as a result of (i) any payment or prepayment,
under any circumstances whatsoever, whether voluntary or involuntary, of all or
any portion of the Loan bearing interest at the LIBOR Interest Rate on a date
other than the last day of the applicable Interest Period, or (ii) the
conversion, for any reason whatsoever, whether voluntary or involuntary, of any
LIBOR Rate Advance to a Variable Rate Advance on a date other that the last day
of the applicable Interest Period. Such amounts payable by Borrower shall be
equal to any administrative costs actually incurred plus any amounts required to
compensate for any loss, cost or expense incurred by reason of the liquidation
or re-employment of deposits or other funds acquired by Lender to fund or
maintain the Loan or any portion thereof while it is bearing interest at the
LIBOR Interest Rate plus, in any event, but without duplication, a Yield
Maintenance Fee.
5. Certain Definitions and Provisions Relating To Interest Rate.
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5.1. Banking Day. The term "Banking Day" means a day on which banks are
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not required or authorized by law to close in the city in which Lender's
principal office is situated.
5.2. Business Day; Same Calendar Month. The term "Business Day" means any
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Banking Day and, with respect to determining or selecting the LIBOR Interest
Rate, any London Banking Day. If any day on which a payment is due is not a
Business Day, then the payment shall be due on the next day following which is a
Business Day, unless, with respect to a LIBOR Rate Advance, the effect would be
to make the payment due in the next calendar month, in which event such payment
shall be due on the next preceding day which is a Business Day. Further, if
there is no corresponding day for a payment in the given calendar month (i.e.,
there is no "February 30th"), the payment shall be due on the last Business Day
of the calendar month.
5.3. Dollars. The term "Dollars" or "$" means lawful money of the United
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States.
5.4. Interest Period. The term "Interest Period" means, with respect to
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each LIBOR Rate Advance, a period of one (1) month. Interest Periods shall
initially be scheduled to commence on the same day of each month (the first
Interest Period to commence on the day that the proceeds of the Loan are
advanced to Borrower), and to end on the numerically corresponding day in the
next succeeding month; Provided, however: (a) if there is no such numerically
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corresponding day, such Interest Period shall end on the last Business Day of
the applicable month, (b) if the last day of such an Interest Period would
otherwise occur on a day which is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day, but (c) if such extension would
otherwise cause such last day to occur in a new calendar month, then such last
day shall occur on the next preceding Business Day. In no event, however, shall
an Interest Period extend beyond the Maturity Date of the Loan.
5.5. LIBOR Interest Rate. The term "LIBOR Interest Rate" means the per
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annum rate equal to the LIBOR Rate plus 162.5 basis points.
5.6. LIBOR Rate. The term "LIBOR Rate" means, with respect to any LIBOR
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Rate Advance, the interest rate per annum (rounded upward, if necessary, to the
nearest 1/32 of one percent), as determined on the basis of the offered rates
for deposits in Dollars for a period of time comparable to the Interest Period
selected or deemed selected by Borrower for such LIBOR Rate Advance which appear
on the Telerate page 3750 as of 11:00 a.m. London time on the day that is two
(2) London Banking Days preceding the first day of such LIBOR Rate Advance. If
such rate does not appear on the Telerate System on any applicable interest
determination date,
the LIBOR Rate shall be the rate (rounded upward as described above, if
necessary) for deposits in Dollars for a period substantially equal to the
Interest Period on the Reuters Page "LIBO" (or such other page as may replace
the LIBO Page on that service for the purpose of displaying such rates), as of
11:00 a.m. (London time), on the day that is two (2) London Banking Days prior
to the beginning of such Interest Period. If both the Telerate and Reuters
system are unavailable, then the rate for that date will be determined on the
basis of the offered rates for deposits in Dollars for a period of time
comparable to the Interest Period for such LIBOR Rate Advance which are offered
by four major banks in the London interbank market at approximately 11:00 a.m.
London time, on the day that is two (2) London Banking Days preceding the first
day of such LIBOR Rate Advance. The principal London office of each of the four
major London banks will be requested to provide a quotation of its Dollar
deposit offered rate. If at least two such quotations are provided, the rate for
that date will be the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, the rate for that date will be determined
on the basis of the rates quoted for loans in Dollars to leading European banks
for a period of time comparable to the Interest Period for such LIBOR Rate
Advance offered by major banks in New York City at approximately 11:00 a.m. New
York City time, on the day that is two London Banking Days preceding the first
day of such LIBOR Rate Advance. In the event that the Bank is unable to obtain
any such quotation as provided above, it will be deemed that the LIBOR Rate for
such LIBOR Rate Advance cannot be determined. In the event that the Board of
Governors of the Federal Reserve System shall impose a Reserve Percentage with
respect to LIBOR Rate deposits of the Lender, then for any period during which
such Reserve Percentage shall apply, LIBOR Rate shall be equal to the amount
determined above divided by an amount equal to 1 minus the Reserve Percentage.
5.7. LIBOR Rate Advance. The term "LIBOR Rate Advance" means any
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principal outstanding under this Note which pursuant to this Note bears interest
at the LIBOR Interest Rate.
5.8. London Banking Day. The term "London Banking Day" means any day on
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which dealings in deposits in Dollars are transacted in the London interbank
market.
5.9. Maturity. The term "Maturity" means the Maturity Date, or the
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maturity upon acceleration of the Loan, if the Loan has been accelerated by
Lender upon an Event of Default.
5.10. Present Value. The term "Present Value" means the value at the
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applicable maturity discounted to the date of prepayment using the Treasury
Rate.
5.11. Prime Rate. The term "Prime Rate" means the rate published by The
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Wall Street Journal from time to time under the category "Prime Rate: The Base
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Rate on Corporate Loans posted by at least 75% of the Nation's 30 Largest Banks"
(the lowest of the rates so published if more than one rate is published under
this category at any given time) or such other comparable index rate selected by
the Bank in its sole discretion if The Wall Street Journal ceases to publish
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such rate. The Borrowers acknowledge that the Prime Rate is used for reference
purposes only as an index and is not necessarily the lowest interest rate
charged by the Bank on commercial loans.
5.12. Treasury Rate. The term "Treasury Rate" means, as of the date of
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any calculation or determination, the latest published rate for United States
Treasury Notes or Bills (but the rate on Bills issued on a discounted basis
shall be converted to a bond equivalent) as published weekly
in the Federal Reserve Statistical Release H.15(519) of Selected Interest Rates
in an amount which approximates (as determined by Lender) the amount (i)
approximately comparable to the portion of the Loan to which the Treasury Rate
applies for the Interest Period, or (ii) in the case of a prepayment, the amount
prepaid and with a maturity closest to the original maturity of the installment
which is prepaid in whole or in part.
5.13. Variable Interest Rate. The term "Variable Interest Rate" means a
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per annum rate equal at all times to the Prime Rate, with changes therein to be
effective simultaneously with any change in the Prime Rate.
5.14. Variable Rate Advance. The term "Variable Rate Advance" means any
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principal outstanding under this Note which pursuant to this Note bears interest
at the Variable Interest Rate.
6. Additional Provisions Related to Interest Rate Selection.
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6.1 Increased Costs. If, due to any one or more of: (i) the introduction
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of any applicable law or regulation or any change (other than any change by way
of imposition or increase of reserve requirements already referred to in the
above definition of LIBOR Rate) in the interpretation or application by any
authority charged with the interpretation or application thereof of any law or
regulation; or (ii) the compliance with any guideline or request from any
governmental central bank or other governmental authority (whether or not having
the force of law), there shall be an increase in the cost to Lender of agreeing
to make or making, funding or maintaining LIBOR Rate Advances, including without
limitation changes which affect or would affect the amount of capital or
reserves required or expected to be maintained by Lender, with respect to all or
any portion of the Loan, or any corporation controlling Lender, on account
thereof, then Borrower from time to time shall, upon written demand by Lender,
pay Lender additional amounts sufficient to indemnify Lender against the
increased cost. A certificate as to the amount of the increased cost and the
reason therefor submitted to Borrower by ▇▇▇▇▇▇, in the absence of manifest
error, shall be conclusive and binding for all purposes.
6.2. Illegality. Notwithstanding any other provision of this Note, if the
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introduction of or change in or in the interpretation of any law, treaty,
statute, regulation or interpretation thereof shall make it unlawful, or any
central bank or government authority shall assert by directive, guideline or
otherwise, that it is unlawful, for Lender to make or maintain LIBOR Rate
Advances at the LIBOR Interest Rate or to continue to maintain the LIBOR Rate
Advances then, on written notice thereof and demand by ▇▇▇▇▇▇ to ▇▇▇▇▇▇▇▇, (a)
the obligation of Lender to make LIBOR Rate Advances and to convert or continue
any Loan Advances at the LIBOR Interest Rate shall terminate and (b) all
principal outstanding under this Note shall bear interest at the Variable
Interest Rate.
6.3. Additional LIBOR Conditions. The utilization of a LIBOR Interest
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Rate and the maintenance of Advances at such rate shall be subject to the
following terms and conditions:
(i) Availability. If Lender notifies Borrower that:
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(a) dollar deposits in the amount and for the maturity requested are
not available to Lender in the London interbank market at the
rate specified in
the definition of LIBOR Rate set forth above, or
(b) reasonable means do not exist for Lender to determine the LIBOR
Rate for the amounts and maturity requested,
then the principal which would have born interest at the LIBOR
Interest Rate shall bear interest at the Variable Interest Rate.
(ii) Payments Net of Taxes. All payments and prepayments of principal and
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interest under this Note shall be made net of any taxes and costs
resulting from having principal outstanding at or computed with
reference to a LIBOR Rate. Without limiting the generality of the
preceding obligation, illustrations of such taxes and costs are taxes,
or the withholding of amounts for taxes, of any nature whatsoever
including income, excise, interest equalization taxes (other than
United States or state income taxes) as well as all levies, imposts,
duties or fees whether now in existence or which become in effect as
the result of a change in or promulgation of any treaty, statute,
regulations, or interpretation thereof or any directive guideline or
otherwise by a central bank or fiscal authority (whether or not having
the force of law) or a change in the basis of, or the time of payment
of, such taxes and other amounts resulting therefrom.
7. Acceleration; Event of Default.
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At the option of the holder, this Note and the indebtedness evidenced
hereby shall become immediately due and payable without further notice or
demand, and notwithstanding any prior waiver of any breach or default, or other
indulgence, upon the occurrence at any time of any one or more of the following
events, each of which shall be an "Event of Default" hereunder and under the
Loan Agreement and each other Loan Document: (i) default continuing uncured
beyond the applicable grace period, if any, set forth in the Loan Agreement, in
making any payment of interest, principal, other charges or payments due
hereunder; (ii) any other Event of Default as defined in or as set forth in the
Loan Agreement or any other Loan Document, each as the same may from time to
time hereafter be amended; or (iii) any other event which pursuant to any
express provision of the Loan Agreement, or of any other Loan Document, gives
Lender the right to accelerate the Loan.
8. Certain Waivers, Consents and Agreements.
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Each and every party liable hereon or for the indebtedness evidenced hereby
whether as maker, endorser, guarantor, surety or otherwise hereby: (a) waives
presentment, demand, protest, suretyship defenses and defenses in the nature
thereof; (b) waives any defenses based upon and specifically assents to any and
all extensions and postponements of the time for payment, changes in terms and
conditions and all other indulgences and forbearances which may be granted by
the holder to any party now or hereafter liable hereunder or for the
indebtedness evidenced hereby; (c) agrees to any substitution, exchange,
release, surrender or other delivery of any security or collateral now or
hereafter held hereunder or in connection with the Loan Agreement, or any of the
other Loan Documents, and to the addition or release of any other party or
person primarily or secondarily liable; (d) agrees that if any security or
collateral given to secure this Note or the indebtedness evidenced hereby or to
secure any of the obligations set forth or
referred to in the Loan Agreement, or any of the other Loan Documents, shall be
found to be unenforceable in full or to any extent, or if Lender or any other
party shall fail to duly perfect or protect such collateral, the same shall not
relieve or release any party liable hereon or thereon nor vitiate any other
security or collateral given for any obligations evidenced hereby or thereby;
(e) agrees to pay all costs and expenses incurred by Lender or any other holder
of this Note in connection with the indebtedness evidenced hereby, including,
without limitation, all attorneys' fees and costs, for the implementation of the
Loan, the collection of the indebtedness evidenced hereby and the enforcement of
rights and remedies hereunder or under the other Loan Documents, whether or not
suit is instituted; and (f) consents to all of the terms and conditions
contained in this Note, the Loan Agreement, or any one or more of the other Loan
Documents.
9. Delay Not A Bar.
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No delay or omission on the part of the holder in exercising any right
hereunder or any right under any instrument or agreement now or hereafter
executed in connection herewith, or any agreement or instrument which is given
or may be given to secure the indebtedness evidenced hereby or by the Loan
Agreement, or any other agreement now or hereafter executed in connection
herewith or therewith shall operate as a waiver of any such right or of any
other right of such holder, nor shall any delay, omission or waiver on any one
occasion be deemed to be a bar to or waiver of the same or of any other right on
any future occasion.
10. Partial Invalidity.
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The invalidity or unenforceability of any provision hereof, of the Loan
Agreement, of the other Loan Documents, or of any other instrument, agreement or
document now or hereafter executed in connection with the Loan made pursuant
hereto and thereto shall not impair or vitiate any other provision of any of
such instruments, agreements and documents, all of which provisions shall be
enforceable to the fullest extent now or hereafter permitted by law.
11. Compliance With Usury Laws.
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All agreements between Borrower and Lender are hereby expressly limited so
that in no contingency or event whatsoever, whether by reason of acceleration of
maturity of the indebtedness evidenced hereby or otherwise, shall the amount
paid or agreed to be paid to Lender for the use or the forbearance of the
indebtedness evidenced hereby exceed the maximum permissible under applicable
law. As used herein, the term "applicable law" shall mean the law in effect as
of the date hereof, provided, however, that in the event there is a change in
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the law which results in a higher permissible rate of interest, then this Note
shall be governed by such new law as of its effective date. In this regard, it
is expressly agreed that it is the intent of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ in the
execution, delivery and acceptance of this Note to contract in strict compliance
with the laws of the State of New Hampshire from time to time in effect. If,
under or from any circumstances whatsoever, fulfillment of any provision hereof
or of any of the Loan Documents or the Security Documents at the time
performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by applicable law, then the obligation to be fulfilled
shall automatically be reduced to the limit of such validity, and if under or
from any circumstances whatsoever Lender should ever receive as interest an
amount which would exceed the highest lawful rate, such amount which would be
excessive interest shall be applied to the reduction of the
principal balance evidenced hereby and not to the payment of interest. This
provision shall control every other provision of all agreements between Borrower
and Lender.
12. Use of Proceeds.
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All proceeds of the Loan shall be used solely for the purposes more
particularly provided for and limited by the Loan Agreement.
13. Security.
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This Note is secured by a first security interes in the Borrower's assets,
a pledge of the capital stock of the Borrower (other than WPI Group, Inc.) and
such other Collateral as may now or hereafter secure the Loan under the Loan
Agreement and the other Loan Documents.
14. Notices.
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Any notices given with respect to this Note shall be given in the manner
provided for in the Loan Agreement.
15. Governing Law and Consent to Jurisdiction.
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15.1. Substantial Relationship. It is understood and agreed that all of
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the Loan Documents were negotiated, executed and delivered in the State of New
Hampshire, which State the parties agree has a substantial relationship to the
parties and to the underlying transactions embodied by the Loan Documents.
15.2. Place of Delivery. ▇▇▇▇▇▇▇▇ agrees to furnish to ▇▇▇▇▇▇ at ▇▇▇▇▇▇'s
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office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ all further instruments,
certifications and documents to be furnished hereunder.
15.3. Governing Law. This Note and each of the other Loan Documents shall
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in all respects be governed, construed, applied and enforced in accordance with
the internal laws of the State of New Hampshire without regard to principles of
conflicts of law.
15.4. Consent to Jurisdiction. Borrower hereby consents to personal
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jurisdiction in any state or Federal court located within the State of New
Hampshire.
16. Waiver of Jury Trial.
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▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER
LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDER
TO ACCEPT THIS NOTE AND MAKE THE LOAN.
17. No Oral Change.
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This Note and the other Loan Documents may only be amended, terminated,
extended or otherwise modified by a writing signed by the party against which
enforcement is sought. In no event shall any oral agreements, promises,
actions, inactions, knowledge, course of conduct, course of dealing, or the like
be effective to amend, terminate, extend or otherwise modify this Note or any of
the other Loan Documents.
18. Rights of the Holder.
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This Note and the rights and remedies provided for herein may be enforced
by Lender or any subsequent holder hereof. Wherever the context permits each
reference to the term "holder" herein shall mean and refer to Lender or the then
subsequent holder of this Note.
19. Replacement of Prior Term Note.
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This Note is executed and delivered in replacement of, but not in novation
or discharge of, the Promissory Note of WPI Group, Inc., WPI Electronics, Inc.,
WPI Magnetec, Inc., WPI Micro Palm, Inc., WPI Power Systems, Inc., WPI
Termiflex, Inc., WPI Micro Processor Systems, Inc., WPI DecisionKey, Inc., WPI
UK Holding, Inc., WPI UK Holding II, Inc., WPI Oyster Terminals, Inc., WPI Group
(U.K.) and WPI Oyster Terminals Limited, payable to the order of the Bank in the
principal amount of Fifteen Million Dollars ($15,000,000.00) dated June 20, 1997
( the "Prior Note"). All references to the Prior Note in any Loan Document
shall be deemed to refer to this Note which evidences the indebtedness
previously evidenced by the Prior Note.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has caused this Note to be duly executed and
delivered as of the date set forth above.
WPI GROUP, INC.,
WPI POWER SYSTEMS, INC.,
WPI MAGNETEC, INC.,
WPI ELECTRONICS, INC.,
WPI TERMIFLEX, INC.,
WPI MICRO PALM, INC.,
WPI MICRO PROCESSOR SYSTEMS, INC.,
WPI DECISIONKEY, INC.,
WPI UK HOLDING, INC.,
WPI UK HOLDING II, INC.,
WPI OYSTER TERMINALS, INC., and
WPI HUSKY COMPUTERS, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Witness ▇▇▇▇ ▇. ▇▇▇▇▇▇, for, on behalf of, and
as Duly Authorized Officer or Agent of
each of the above-named corporations