FIRST AMENDMENT TO FINANCING AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO FINANCING AND SECURITY AGREEMENT
(this "Agreement") is made as of the 6th day of October, 1997 by
and ARGUSS HOLDINGS, INC., a Delaware corporation ("Arguss"),
WHITE MOUNTAIN CABLE CONSTRUCTION CORP., a Delaware corporation
("White Mountain"), CONCEPTRONIC, INC., a Delaware corporation
("Conceptronic"; together with Arguss and White Mountain, the
"Borrowers" and each a "Borrower") and NATIONSBANK, N.A., a
national banking association, its successors and assigns (the
"Lender").
RECITALS
A. The Lender has made certain loans available to the
Borrowers consisting of (i) a term loan to White Mountain and
Arguss (the "White Mountain Borrowers") in the principal amount
of Four Million and No/100 Dollars ($4,000,000.00) (the "Facility
1 Loan") to be used to refinance existing debt, (ii) a line of
credit in favor of the White Mountain Borrowers in the maximum
principal amount of Three Million Five Hundred Thousand and
No/100 Dollars ($3,500,000.00) (the "Facility 2 Loan") to be used
to finance capital expenditures; (iii) a revolving line of credit
in favor of the White Mountain Borrowers in the maximum principal
amount of Three Million and No/100 Dollars ($3,000,000.00)(the
"Facility 3 Loan") to be used to for working capital; and (iv) a
credit facility in the amount of One Million Five Hundred
Thousand and No/100 Dollars ($1,500,000.00) (the "Facility 4
Loan") to Arguss and Conceptronic (the "Conceptronic Borrowers")
to be used for working capital.
B. The Loans are governed by that certain Financing and
Security Agreement by and among the Borrowers and the Lender
dated September 11, 1997(the Financing and Security Agreement, as
amended from time to time is hereinafter called, the "Financing
Agreement").
C. All capitalized terms used herein and not otherwise
defined shall have the meanings given to such terms in the
Financing Agreement.
D. The White Mountain Borrowers have entered into an
Agreement and Plan of Merger (together with any and all
amendments, modifications, and supplements thereto, restatements
thereof, and substitutes therefor, the "Purchase Agreement"),
with the stockholders of Rite Cable Construction, Inc., a Florida
corporation ("Rite Cable"), pursuant to which, White Cable will,
among other things, acquire all of the outstanding stock of Rite
Cable and merge Rite Cable with White Mountain, so that White
Mountain is the sole surviving corporate entity (the "Purchase
Transaction") and the Borrowers have requested that the Lender
increase the principal amount of the Facility 1 Loan from Four
Million and No/100 Dollars ($4,000,000.00) to Four Million Two
Hundred Fifty Thousand and No/100 Dollars ($4,250,000.00) and
increase the Facility 3 Loan from Three Million and No/100
Dollars ($3,000,000.00) to Four Million and No/100 Dollars
($4,000,000.00) to finance the Purchase Transaction and the
Lender has agreed, on the condition, among others, that this
Agreement be executed and delivered by the Borrower.
NOW, THEREFORE, in consideration of the premises, the mutual
agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and the Lender hereby agree as
follows:
1. Recitals. The parties hereto acknowledge and agree
that the above Recitals are true and correct in all respect and
that the same are incorporated herein and made a part hereof by
reference.
2. Facility 1 Loan. From and after the effective date
hereof, Section 2.01(a) of the Financing Agreement is amended and
restated in its entirety as follows:
Section 2.01 The Facility 1 Loan. (a)The Lender agrees
to lend to the White Mountain Borrowers and the White
Mountain Borrowers agree to borrow from the Lender the
principal sum of Four Million Two Hundred Fifty Thousand and
No/100 Dollars ($4,250,000.00) (the "Facility 1 Loan"). The
joint and several obligation of the White Mountain Borrowers
to repay the Facility 1 Loan shall be evidenced by the White
Mountain Borrowers' Promissory Note dated September 11,
1997, as increased, amended and restated in its entirety by
that certain Amended and Restated Replacement Promissory
Note dated October 6, 1997 from the White Mountain Borrowers
in favor of the Lender (the "Facility 1 Note") payable to
the Lender in the form attached hereto as EXHIBIT A-1. The
Facility 1 Note shall bear interest and shall be repaid by
the White Mountain Borrowers in the manner and at the times
set forth in the Facility 1 Note.
3. Facility 3 Loan. From and after the effective date
hereof, Section 2.03(a) of the Financing Agreement is amended and
restated in its entirety as follows:
SECTION 2.03 The Facility 3 Loan. (a)The Lender agrees
to lend to the White Mountain Borrowers on a revolving basis
from time to time the maximum principal amount of Four
Million and No/100 Dollars ($4,000,000.00) (the "Facility 3
Loan"). The joint and several obligation of the White
Mountain Borrowers to repay the advances under the Facility
3 Loan shall be evidenced by the White Mountain Borrowers'
Facility 3 Note dated September 11, 1997, as increased,
amended and restated in its entirety by that certain Amended
and Restated Revolving Promissory Note dated October 6, 1997
from the White Mountain Borrowers in favor of the Lender
(the "Facility 3 Note") payable to the Lender in the form
attached hereto as EXHIBIT A-4. The Facility 3 Note shall
bear interest and shall be repaid by the White Mountain
Borrowers in the manner and at the times set forth in the
Facility 3 Note.
4. Grant of Security Interest. White Mountain hereby
assigns, pledges and grants to the Lender, and agrees that the
Lender shall have a perfected and continuing security interest
in, and lien on, all assets of Rite Cable's acquired by White
Mountain, including, without limitation: (a) Accounts, chattel
paper, Equipment, General Intangibles, Motor Vehicles, documents,
instruments and Inventory, Leases (whether or not designated with
initial capital letters), as those (whether or not designated
with initial capital letters), as those terms are defined in the
Uniform Commercial Code as presently adopted and in effect in the
State and shall also cover, without limitation, any and all
property specifically included in those respective terms in this
Agreement or in the Financing Documents; (b) returned, rejected
or repossessed goods, the sale or lease of which shall have given
or shall give rise to an Account or Chattel Paper; (c) insurance
policies relating to the foregoing; (d) books and records in
whatever media (paper, electronic or otherwise) recorded or
stored, with respect to the foregoing and all Equipment and
General Intangibles necessary or beneficial to retain, access
and/or process the information contained in those books and
records; and (e) cash and non-cash proceeds and products of the
foregoing.
5. Solvency. The Borrowers represent that the fair
saleable value of each Borrower's assets (including goodwill
minus disposition costs) exceeds the fair value of its
liabilities; no Borrower is left with unreasonably small capital
after the transactions contemplated by this Agreement; and each
Borrower is able to pay its debts (including trade debts) as they
mature.
6. Replacement Notes. EXHIBITS A-1 and A-3 to the
Financing Agreement are being replaced in their entirety with
EXHIBITS A-1 and A-3 attached hereto. The White Mountain
Borrowers shall execute and deliver to the Lender on the date
hereof their Amended and Restated Revolving Promissory Note in
the form of EXHIBIT A-3 attached hereto and incorporated herein
by reference (the "Replacement Facility 3 Note") and their
Amended and Restated Replacement Term Promissory Note in the form
of EXHIBIT A-1 attached hereto and incorporated herein by
reference (the "Replacement Facility 1 Note") in substitution for
and not satisfaction of, the issued and outstanding Facility 3
Note and Facility 1 Note; and the Replacement Facility 1 Note
shall be the "Facility 1 Note" for all purposes of the Financing
Documents and the Replacement Facility 3 Note shall be the
"Facility 3 Note" for all purposes of the Financing Documents.
The Notes being substituted pursuant to this Agreement shall be
marked "Replaced" and returned to the White Mountain Borrowers
promptly after the execution and delivery of the Replacement
Facility 1 Note and Replacement Facility 3 Note to the Lender.
7. Conditions Precedent. This Agreement shall become
effective on the date the Lender receives the following
documents, each of which shall be satisfactory in form and
substance to the Lender:
(a) The Replacement Facility 1 Note issued and
delivered by the White Mountain Borrowers in the form of EXHIBIT
A-1 attached hereto and incorporated herein by reference, payable
to the order of the Lender in the maximum principal amount of
Four Million Dollars Two Hundred Fifty Thousand and No/100
($4,000,000.00);
(b) The Replacement Facility 3 Note issued and
delivered by the White Mountain Borrowers in the form of EXHIBIT
A-3 attached hereto and incorporated herein by reference, payable
to the order of the Lender in the maximum principal amount of
Four Million and no/100 Dollars ($4,000,000.00);
(c) All documents and instruments (including,
without limitation, UCC-1 and UCC-3 statements) required to be
filed, registered or recorded in order to create, in favor of the
Lender, a perfected Lien in the Collateral (subject only to the
Permitted Liens) in form and in sufficient number for filing,
registration, and recording in each office in each jurisdiction
in which such filings, registrations and recordations are
required, and (b) delivered such evidence as the Lender may deem
satisfactory that all necessary filing fees and all recording and
other similar fees, and all Taxes and other expenses related to
such filings, registrations and recordings will be or have been
paid in full.
(d) A true correct and complete copy of the Purchase
Agreement and any and all other agreements, documents or
instruments, previously, now or hereafter executed and delivered
by the Borrower, or any other Person in connection with the
Purchase Agreement Transaction (the "Purchase Agreement
Documents"), together with a certificate signed by the Borrowers
certifying that the Purchase Agreement Documents furnished to the
Lender are true, correct, in full force and effect and the
provisions thereof have not been in any way modified, amended or
waived.
(e) True and complete copies of the Articles of Merger
between Rite Cable and White Mountain.
(f) The favorable opinion of counsel for the Borrowers
satisfactory to the Lender.
(g) Such other information, instruments, opinions,
documents, certificates and reports as the Lender may deem
necessary.
8. Counterparts. This Agreement may be executed in any
number of duplicate originals or counterparts, each of which
duplicate original or counterpart shall be deemed to be an
original and all taken together shall constitute one and the same
instrument.
9. Financing Documents; Governing Law; Etc. This
Agreement is one of the Financing Documents defined in the
Financing Agreement and shall be governed and construed in
accordance with the laws of the State of Maryland. The headings
and captions in this Agreement are for the convenience of the
parties only and are not a part of this Agreement.
10. Acknowledgments. The Borrowers hereby confirm to the
Lender the enforceability and validity of each of the Financing
Documents. In addition, the Borrowers hereby agree to the
execution and delivery of this Agreement and the terms and
provisions, covenants or agreements contained in this Agreement
shall not in any manner release, impair, lessen, modify, waive or
otherwise limit the liability and obligations of the Borrowers
under the terms of any of the Financing Documents, except as
otherwise specifically set forth in this Agreement. The
Borrowers issue, remake, ratify and confirm the representations,
warranties and covenants contained in the Financing Documents.
Nothing in this Agreement shall be deemed to waive any defaults
existing under any of the Financing Documents as of the date
hereof.
11. Modifications. This Agreement may not be supplemented,
changed, waived, discharged, terminated, modified or amended,
except by written instrument executed by the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and delivered under seal by the duly authorized
representatives as of the date and year first written above.
WITNESS/ATTEST: ARGUSS HOLDINGS, INC.
__________________________
By:_____________________________(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
WITNESS/ATTEST: WHITE
MOUNTAIN CABLE CONSTRUCTION
CORP.
__________________________
By:_____________________________(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
WITNESS/ATTEST: CONCEPTRONIC, INC.
__________________________
By:_____________________________(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
WITNESS: NATIONSBANK, N.A.
__________________________
By:_____________________________(SEAL)
▇▇▇▇ ▇. Broni
Assistant Vice President
AMENDED AND RESTATED
REPLACEMENT TERM PROMISSORY NOTE
$4,250,000 Rockville,
Maryland
October 6, 1997
FOR VALUE RECEIVED, ARGUSS HOLDINGS, INC., a corporation
organized under the laws of the State of Delaware and WHITE
MOUNTAIN CABLE CONSTRUCTION CORP., a corporation organized under
the laws of the State of Delaware (collectively, the "Borrowers"
and each a "Borrower"), jointly and severally, promise to pay to
the order of NATIONSBANK, N.A., a national banking association,
its successors and assigns (the "Lender"), the principal sum of
Four Million Two Hundred Fifty Thousand and No/100 Dollars
($4,250,000) (the "Principal Sum"), together with interest
thereon at the rate or rates hereinafter provided, in accordance
with the following:
1. Interest. Commencing as of the date hereof and
continuing until repayment in full of all sums due hereunder, all
amounts outstanding hereunder shall bear interest at the LIBOR
Rate (as hereinafter defined), plus one hundred and sixty five
basis points (1.49%) rounded upward to the nearest basis point.
For purposes hereof, the "LIBOR Rate" shall mean a fluctuating
rate equal to the daily London Interbank Offered Rate for thirty
(30) days U.S. Dollar deposits as quoted by the Lender as of
11:00 A.M. (Washington, D.C., time), which rate shall be adjusted
for any Federal Reserve Board reserve requirements imposed upon
the Lender from time to time (the "LIBOR Rate"). The interest
rate on all sums accruing interest at the LIBOR Rate under this
Note shall change on the first day of each month, based on the
LIBOR Rate as of the last day of the immediately preceding month.
All interest payable under the terms of this Note shall be
calculated on the basis of a 360-day year and the actual number
of days elapsed.
2. Payments and Maturity. The unpaid Principal Sum,
together with interest thereon at the rate or rates provided
above, shall be payable as follows:
(a) The unpaid Principal Sum shall be due and payable
in monthly installments of principal in the amount of $70,833.33
each, plus accrued and unpaid interest, commencing October 31,
1997 and on the last day of each month thereafter to maturity;
(b) Unless sooner paid, the unpaid Principal Sum,
together with interest accrued and unpaid thereon, shall be due
and payable in full on September 9, 2002.
3. Default Interest. Upon the occurrence of an Event of
Default (as hereinafter defined), the unpaid Principal Sum shall
bear interest thereafter at a rate two percent (2%) per annum in
excess of the then current rate or rates of interest hereunder
until such Event of Default is cured.
4. Late Charges. If the Borrowers shall fail to make any
payment under the terms of this Note within fifteen (15) days
after the date such payment is due, the Borrowers shall pay to
the Lender on demand a late charge equal to five percent (5%) of
such payment.
5. Application and Place of Payments. All payments, made
on account of this Note shall be applied first to the payment of
any late charge then due hereunder, second to the payment of
accrued and unpaid interest then due hereunder, and the
remainder, if any, shall be applied to the unpaid Principal Sum,
with application first made to all principal installments then
due hereunder, next to the outstanding principal balance due and
owing at maturity and thereafter to the principal payments due in
the inverse order of maturities. Notwithstanding any provision
contained herein to the contrary, any portion of a permitted
partial prepayment applied to the unpaid Principal Sum shall be
applied first to the outstanding principal balance due and owing
at maturity and thereafter to the principal payments due in the
inverse order of maturities. All payments on account of this
Note shall be paid in lawful money of the United States of
America in immediately available funds during regular business
hours of the Lender at its principal office in Bethesda, Maryland
or at such other times and places as the Lender may at any time
and from time to time designate in writing to the Borrowers. The
Lender is authorized to deduct any payment (including payments of
principal and/or interest as above provided) from the Borrowers'
Account Number _____________ on or after the date the payment is
due; provided, however, that such authorization shall not be
deemed to relieve the Borrowers from their joint and several
obligation to make such payment when it is due.
6. Financing Agreement and Other Financing Documents.
This Note is one of the "Facility 2 Term Notes" described in a
Financing and Security Agreement dated September 10, 1997 by and
among the Borrowers, Conceptronic, Inc. ("Conceptronic") and the
Lender (as amended, modified, restated, substituted, extended and
renewed at any time and from time to time, the "Financing
Agreement"). The indebtedness evidenced by this Note is included
within the meaning of the term "Obligations" as defined in the
Financing Agreement. The term "Financing Documents" as used in
this Note shall mean collectively this Note, the Facility 1 Note,
the Facility 2 Note, the Facility 3 Note, the Facility 4 Note,
the Financing Agreement and any other instrument, agreement, or
document previously, simultaneously, or hereafter executed and
delivered by the Borrowers, Conceptronic and/or any other person,
singularly or jointly with any other person, evidencing,
securing, guaranteeing, or in connection with the Principal Sum,
this Note, the Facility 1 Note, the Facility 2 Note, the Facility
3 Note, the Facility 4 Note and/or the Financing Agreement. All
capitalized terms used herein and not otherwise defined shall
have the meanings given to such terms in the Financing Agreement.
7. Prepayment. The Borrowers may prepay the Principal
Sum in whole or in part, at any time or from time to time,
without premium or penalty. Any prepayment, in whole or in part,
will not affect the Borrowers' joint and several obligation to
continue making payment in connection with any swap agreement (as
defined in 11 U.S.C. 101), which will remain in full force and
effect notwithstanding that prepayment.
8. Security. This Note is secured as provided in the
Financing Agreement.
9. Events of Default. The occurrence of any one or more
of the following events shall constitute an event of default
(individually, an "Event of Default" and collectively, the
"Events of Default") under the terms of this Note:
(a) The failure of the Borrowers to pay to the Lender
when due, after all applicable grace periods, if any, and all
amounts payable by the Borrowers to the Lender under the terms of
this Note; or
(b) The occurrence of an event of default (as defined
therein) under the terms and conditions of any of the other
Financing Documents.
10. Remedies. Upon the occurrence of an Event of Default,
at the option of the Lender, all amounts payable by the Borrowers
to the Lender under the terms of this Note shall immediately
become due and payable by the Borrowers to the Lender without
notice to the Borrowers or any other person, and the Lender shall
have all of the rights, powers, and remedies available under the
terms of this Note, any of the other Financing Documents and all
applicable laws. The Borrowers and all endorsers, guarantors,
and other parties who may now or in the future be primarily or
secondarily liable for the payment of the indebtedness evidenced
by this Note hereby severally waive presentment, protest and
demand, notice of protest, notice of demand and of dishonor and
non-payment of this Note and expressly agree that this Note or
any payment hereunder may be extended from time to time without
in any way affecting the liability of the Borrowers, guarantors
and endorsers.
Until such time as the Lender is not committed to extend
further credit to the Borrowers and all Obligations of the
Borrowers to the Lender have been indefeasibly paid in full in
cash, and subject to and not in limitation of the provisions set
forth in the next following paragraph below, the Borrowers shall
not have any right of subrogation (whether contractual, arising
under the Bankruptcy Code or otherwise), reimbursement or
contribution from any of the Borrowers or any guarantor, nor any
right of recourse to its security for any of the debts and
obligations of any of the Borrowers which are the subject of this
Note. Except as otherwise expressly permitted by the Financing
Agreement, any and all present and future debts and obligations
of any of the Borrowers to either of the Borrowers are hereby
subordinated to the full payment and performance of all present
and future debts and obligations to the Lender under this Note
and the Financing Agreement and the Financing Documents,
provided, however, notwithstanding anything set forth in this
Note to the contrary, prior to the occurrence of a payment
Default, the Borrowers shall be permitted to make payments on
account of any of such present and future debts and obligations
from time to time in accordance with the terms thereof.
The Borrowers further agree that, if any payment made by any
of the Borrowers or any other person is applied to this Note and
is at any time annulled, set aside, rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required
to be refunded or repaid, or the proceeds of any property
hereafter securing this Note is required to be returned by the
Lender to any of the Borrowers, its estate, trustee, receiver or
any other party, including, without limitation, such Borrower,
under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or
repayment, such Borrower's liability hereunder (and any lien,
security interest or other collateral securing such liability)
shall be and remain in full force and effect, as fully as if such
payment had never been made, or, if prior thereto any such lien,
security interest or other collateral hereafter securing such
Borrower's liability hereunder shall have been released or
terminated by virtue of such cancellation or surrender, this Note
(and such lien, security interest or other collateral) shall be
reinstated in full force and effect, and such prior cancellation
or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of such Borrower in respect of
the amount of such payment (or any lien, security interest or
other collateral securing such obligation).
The JOINT AND SEVERAL obligations of each of the Borrowers
under this Note shall be absolute, irrevocable and unconditional
and shall remain in full force and effect until the outstanding
principal of and interest on this Note and all other Obligations
or amounts due hereunder and under the Financing Agreement and
the Financing Documents shall have been indefeasibly paid in full
in cash in accordance with the terms thereof and this Note shall
have been canceled.
11. Expenses. The Borrowers, jointly and severally,
promise to pay to the Lender on demand by the Lender all costs
and expenses incurred by the Lender in connection with the
collection and enforcement of this Note, including, without
limitation, reasonable attorneys' fees and expenses and all court
costs.
12. Notices. Any notice, request, or demand to or upon the
Borrowers or the Lender shall be deemed to have been properly
given or made when delivered in accordance with Section 11.01 of
the Financing Agreement.
13. Miscellaneous. Each right, power, and remedy of the
Lender as provided for in this Note or any of the other Financing
Documents, or now or hereafter existing under any applicable law
or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power, or remedy provided for in
this Note or any of the other Financing Documents or now or
hereafter existing under any applicable law, and the exercise or
beginning of the exercise by the Lender of any one or more of
such rights, powers, or remedies shall not preclude the
simultaneous or later exercise by the Lender of any or all such
other rights, powers, or remedies. No failure or delay by the
Lender to insist upon the strict performance of any term,
condition, covenant, or agreement of this Note or any of the
other Financing Documents, or to exercise any right, power, or
remedy consequent upon a breach thereof, shall constitute a
waiver of any such term, condition, covenant, or agreement or of
any such breach, or preclude the Lender from exercising any such
right, power, or remedy at a later time or times. By accepting
payment after the due date of any amount payable under the terms
of this Note, the Lender shall not be deemed to waive the right
either to require prompt payment when due of all other amounts
payable under the terms of this Note or to declare an Event of
Default for the failure to effect such prompt payment of any such
other amount. No course of dealing or conduct shall be effective
to amend, modify, waive, release, or change any provisions of
this Note.
14. Partial Invalidity. In the event any provision of this
Note (or any part of any provision) is held by a court of
competent jurisdiction to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision (or remaining part of the
affected provision) of this Note; but this Note shall be
construed as if such invalid, illegal, or unenforceable provision
(or part thereof) had not been contained in this Note, but only
to the extent it is invalid, illegal, or unenforceable.
15. Captions. The captions herein set forth are for
convenience only and shall not be deemed to define, limit, or
describe the scope or intent of this Note.
16. Applicable Law. Each of the Borrowers acknowledges and
agrees that this Note shall be governed by the laws of the State
of Maryland, even though for the convenience and at the request
of the Borrowers, this Note may be executed elsewhere.
17. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE
ARISING OUT OF THIS NOTE OR ANY RELATED INSTRUMENTS, AGREEMENTS
OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN
ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLIC
ABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR ARBITRATION OF COMMERCIAL DISPUTES OF ENDISPUTE,
INC., D/B/A J.A.M.S./ENDISPUTE ("J.A.M.S.") AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF AN INCONSISTENCY, THE
SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD
MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING ANY ACTION,
INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL
ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS INSTRUMENT,
AGREEMENT OR DOCUMENT RELATES IN ANY COURT HAVING JURISDICTION
OVER SUCH ACTION.
(A) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED
IN ▇▇▇▇▇▇▇▇▇▇ COUNTY, MARYLAND AND ADMINISTERED BY J.A.M.S. WHO
WILL APPOINT AN ARBITRATOR. IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS
WILL BE COMMENCED WITHIN NINETY (90) DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING
OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCING OF SUCH HEARING
FOR AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS
INSTRUMENT, NOTE SHALL BE DEEMED TO: (I) LIMIT THE APPLICABILITY
OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND
ANY WAIVERS CONTAINED IN THIS NOTE; OR (II) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF
THE LENDER: (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVI
SIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE LENDER MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR
ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS NOTE. NEITHER
THE EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF ANY ACTION FOR FORECLOSURE OR FOR PROVISIONAL OR
ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO ARBITRATE THE
MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES.
18. Consent to Jurisdiction. Each of the Borrowers
irrevocably submits to the jurisdiction of any state or federal
court sitting in the State of Maryland over any suit, action, or
proceeding arising out of or relating to this Note. Each of the
Borrowers irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the
laying of venue of any such suit, action, or proceeding brought
in any such court and any claim that any such suit, action, or
proceeding brought in any such court has been brought in an
inconvenient forum. Final judgment in any such suit, action, or
proceeding brought in any such court shall be conclusive and
binding upon the Borrowers and may be enforced in any court in
which the Borrowers are subject to jurisdiction by a suit upon
such judgment provided that service of process is effected upon
the Borrowers as provided in this Note or as otherwise permitted
by applicable law.
19. WAIVER OF TRIAL BY JURY. EACH OF THE BORROWERS HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE
BORROWERS, OR EITHER OF THEM, AND THE LENDER MAY BE PARTIES,
ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS NOTE OR (B)
THE FINANCING DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS
WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS
AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING
CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS NOTE.
THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY
THE BORROWERS, AND THE BORROWERS HEREBY REPRESENT THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY
INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY
WAY MODIFY OR NULLIFY ITS EFFECT. THE BORROWERS FURTHER
REPRESENT THAT THEY HAVE BEEN REPRESENTED IN THE SIGNING OF THIS
NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD
THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
IN WITNESS WHEREOF, the Borrowers have caused this Note to
be executed under seal by their duly authorized officers as of
the date first written above.
WITNESS/ATTEST: ARGUSS HOLDINGS, INC.
______________________________
By:______________________________(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
WITNESS/ATTEST: WHITE MOUNTAIN CONSTRUCTION
CABLE CORP.
______________________________
By:______________________________(SEAL)
Name:
Title:
AMENDED AND RESTATED
REVOLVING PROMISSORY NOTE
$4,000,000.00 Rockville, Maryland
October 6, 1997
FOR VALUE RECEIVED, ARGUSS HOLDINGS, INC. a corporation
organized under the laws of the State of Delaware ("Arguss") and
WHITE MOUNTAIN CABLE CONSTRUCTION CORP., a corporation organized
under the laws of the State of Delaware ("White Mountain";
collectively, the "Borrowers" and each a "Borrower"), jointly and
severally, promise to pay to the order of NATIONSBANK, N.A., a
national banking association, its successors and assigns (the
"Lender"), the principal sum of FOUR MILLION AND NO/100 DOLLARS
($4,000,000.00) (the "Principal Sum"), or so much thereof as has
been or may be advanced and readvanced to or for the account of
the Borrowers pursuant to the terms and conditions of the
Financing Agreement (as hereinafter defined), together with
interest thereon at the rate or rates hereinafter provided, in
accordance with the following:
1. Interest. Commencing as of the date hereof and
continuing until repayment in full of all sums due hereunder, all
amounts outstanding hereunder shall bear interest at the LIBOR
Rate (as hereinafter defined), plus one hundred and sixty five
basis points (1.65%) rounded upwards to the nearest basis point.
For purposes hereof, the "LIBOR Rate" shall mean a fluctuating
rate equal to the daily London Interbank Offered Rate for thirty
(30) day U.S. Dollar deposits as quoted by the Lender as of 11:00
A.M. (Washington, D.C., time), which rate shall be adjusted for
any Federal Reserve Board reserve requirements imposed upon the
Lender from time to time (the "LIBOR Rate"). The interest rate
on all sums accruing interest at the LIBOR Rate under this Note
shall change on the first day of each month, based on the LIBOR
Rate as in effect on the last day of the immediately preceding
month. All interest payable under the terms of this Note shall
be calculated on the basis of a 360-day year and the actual
number of days elapsed.
2. Payments and Maturity. The unpaid Principal Sum,
together with interest thereon at the rate or rates provided
above, shall be payable as follows:
(a) Interest only on the unpaid Principal Sum shall be
due and payable monthly, commencing October 31, 1997, and on the
last day of each month thereafter to maturity; and
(b) Unless sooner paid, the unpaid Principal Sum,
together with interest accrued and unpaid thereon, shall be due
and payable in full on May 31, 1998.
The fact that the balance hereunder may be reduced to zero
from time to time pursuant to the Financing Agreement will not
affect the continuing validity of this Note or the Financing
Agreement, and the balance may be increased to the Principal Sum
after any such reduction to zero.
3. Default Interest. Upon the occurrence of an Event of
Default (as hereinafter defined), the unpaid Principal Sum shall
bear interest thereafter at a rate two percent (2%) per annum in
excess of the then current rate or rates of interest hereunder
until such Event of Default is cured.
4. Late Charges. If the Borrowers shall fail to make any
payment under the terms of this Note within fifteen (15) days
after the date such payment is due, the Borrowers shall pay to
the Lender on demand a late charge equal to five percent (5%) of
such payment.
5. Application and Place of Payments. All payments, made
on account of this Note shall be applied first to the payment of
any late charge then due hereunder, second to the payment of
accrued and unpaid interest then due hereunder, and the
remainder, if any, shall be applied to the unpaid Principal Sum.
All payments on account of this Note shall be paid in lawful
money of the United States of America in immediately available
funds during regular business hours of the Lender at its
principal office in Bethesda, Maryland or at such other times and
places as the Lender may at any time and from time to time
designate in writing to the Borrowers. The Lender is authorized
to deduct any payment (including payments of principal and/or
interest as above provided) from the Borrowers' Account Number
______________ on or after the date the payment is due; provided,
however, that such authorization shall not be deemed to relieve
the Borrowers from their joint and several obligation to make
such payment when it is due.
6. Prepayment. The Borrowers may prepay the Principal
Sum in whole or in part, at any time or from time to time,
without premium or penalty. Any prepayment, in whole or in part,
will not affect the Borrowers' joint and several obligation to
continue making payment in connection with any swap agreement (as
defined in 11 U.S.C. 101), which will remain in full force and
effect notwithstanding that prepayment.
7. Financing Agreement and Other Financing Documents.
This Note is the "Facility 3 Note" described in a Financing and
Security Agreement dated September 11, 1997 by and among Arguss,
White Mountain, Conceptronic, Inc. ("Conceptronic") and the
Lender, which Financing and Security Agreement is being amended
by that certain First Amendment to Financing and Security
Agreement of even date herewith by and among the Borrowers,
Conceptronic and the Lender (the Financing and Security
Agreement, as amended, modified, restated, substituted, extended
and renewed at any time and from time to time, is hereinafter
called the "Financing Agreement"). The indebtedness evidenced by
this Note is included within the meaning of the term
"Obligations" as defined in the Financing Agreement. This Note
increases, amends and restates in its entirety that certain
Revolving Promissory Note dated September 11, 1997, from the
Borrowers in favor of the Lender, in the maximum principal amount
of Three Million and No/100 Dollars ($3,000,000.00) (the
"Original Note"). It is expressly agreed that the indebtedness
evidenced by the Original Note has not been extinguished or
discharged by this Note. The term "Financing Documents" as used
in this Note shall mean collectively this Note, the Facility 1
Note, the Facility 2 Note, the Facility 2 Term Notes, the
Facility 4 Note, the Financing Agreement and any other
instrument, agreement, or document previously, simultaneously, or
hereafter executed and delivered by the Borrowers, Conceptronic
and/or any other person, singularly or jointly with any other
person, evidencing, securing, guaranteeing, or in connection with
the Principal Sum, this Note, the Facility 1 Note, the Facility 2
Note, the Facility 2 Term Notes, the Facility 4 Note and/or the
Financing Agreement. All capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in
the Financing Agreement.
8. Security. This Note is secured as provided in the
Financing Agreement.
9. Events of Default. The occurrence of any one or more
of the following events shall constitute an event of default
(individually, an "Event of Default" and collectively, the
"Events of Default") under the terms of this Note:
(a) The failure of the Borrowers to pay to the Lender
when due, after all applicable grace periods, if any, and all
amounts payable by the Borrowers to the Lender under the terms of
this Note; or
(b) The occurrence of an event of default (as defined
therein) under the terms and conditions of any of the other
Financing Documents.
10. Remedies. Upon the occurrence of an Event of Default,
at the option of the Lender, all amounts payable by the Borrowers
to the Lender under the terms of this Note shall immediately
become due and payable by the Borrowers to the Lender without
notice to the Borrowers or any other person, and the Lender shall
have all of the rights, powers, and remedies available under the
terms of this Note, any of the other Financing Documents and all
applicable laws. The Borrowers and all endorsers, guarantors,
and other parties who may now or in the future be primarily or
secondarily liable for the payment of the indebtedness evidenced
by this Note hereby severally waive presentment, protest and
demand, notice of protest, notice of demand and of dishonor and
non-payment of this Note and expressly agree that this Note or
any payment hereunder may be extended from time to time without
in any way affecting the liability of the Borrowers, guarantors
and endorsers.
Until such time as the Lender is not committed to extend
further credit to the Borrowers and all Obligations of the
Borrowers to the Lender have been indefeasibly paid in full in
cash, and subject to and not in limitation of the provisions set
forth in the next following paragraph below, none of the
Borrowers shall have any right of subrogation (whether
contractual, arising under the Bankruptcy Code or otherwise),
reimbursement or contribution from any of the Borrowers or any
guarantor, nor any right of recourse to its security for any of
the debts and obligations of any of the Borrowers which are the
subject of this Note. Except as otherwise expressly permitted by
the Financing Agreement, any and all present and future debts and
obligations of any of the Borrowers to either of the Borrowers
are hereby subordinated to the full payment and performance of
all present and future debts and obligations to the Lender under
this Note and the Financing Agreement and the Financing
Documents, provided, however, notwithstanding anything set forth
in this Note to the contrary, prior to the occurrence of a
payment Default, the Borrowers shall be permitted to make
payments on account of any of such present and future debts and
obligations from time to time in accordance with the terms
thereof.
Each of the Borrowers further agree that, if any payment
made by either of the Borrowers or any other person is applied to
this Note and is at any time annulled, set aside, rescinded,
invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the proceeds of
any property hereafter securing this Note is required to be
returned by the Lender to either of the Borrowers, its estate,
trustee, receiver or any other party, including, without
limitation, such Borrower, under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent
of such payment or repayment, such Borrower's liability hereunder
(and any lien, security interest or other collateral securing
such liability) shall be and remain in full force and effect, as
fully as if such payment had never been made, or, if prior
thereto any such lien, security interest or other collateral
hereafter securing such Borrower's liability hereunder shall have
been released or terminated by virtue of such cancellation or
surrender, this Note (and such lien, security interest or other
collateral) shall be reinstated in full force and effect, and
such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of such
Borrower in respect of the amount of such payment (or any lien,
security interest or other collateral securing such obligation).
The JOINT AND SEVERAL obligations of each of the Borrowers
under this Note shall be absolute, irrevocable and unconditional
and shall remain in full force and effect until the outstanding
principal of and interest on this Note and all other Obligations
or amounts due hereunder and under the Financing Agreement and
the Financing Documents shall have been indefeasibly paid in full
in cash in accordance with the terms thereof and this Note shall
have been canceled.
11. Expenses. The Borrowers, jointly and severally,
promise to pay to the Lender on demand by the Lender all costs
and expenses incurred by the Lender in connection with the
collection and enforcement of this Note, including, without
limitation, reasonable attorneys' fees and expenses and all court
costs.
12. Notices. Any notice, request, or demand to or upon the
Borrowers or the Lender shall be deemed to have been properly
given or made when delivered in accordance with Section 11.01 of
the Financing Agreement.
13. Miscellaneous. Each right, power, and remedy of the
Lender as provided for in this Note or any of the other Financing
Documents, or now or hereafter existing under any applicable law
or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power, or remedy provided for in
this Note or any of the other Financing Documents or now or
hereafter existing under any applicable law, and the exercise or
beginning of the exercise by the Lender of any one or more of
such rights, powers, or remedies shall not preclude the
simultaneous or later exercise by the Lender of any or all such
other rights, powers, or remedies. No failure or delay by the
Lender to insist upon the strict performance of any term,
condition, covenant, or agreement of this Note or any of the
other Financing Documents, or to exercise any right, power, or
remedy consequent upon a breach thereof, shall constitute a
waiver of any such term, condition, covenant, or agreement or of
any such breach, or preclude the Lender from exercising any such
right, power, or remedy at a later time or times. By accepting
payment after the due date of any amount payable under the terms
of this Note, the Lender shall not be deemed to waive the right
either to require prompt payment when due of all other amounts
payable under the terms of this Note or to declare an Event of
Default for the failure to effect such prompt payment of any such
other amount. No course of dealing or conduct shall be effective
to amend, modify, waive, release, or change any provisions of
this Note.
14. Partial Invalidity. In the event any provision of this
Note (or any part of any provision) is held by a court of
competent jurisdiction to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision (or remaining part of the
affected provision) of this Note; but this Note shall be
construed as if such invalid, illegal, or unenforceable provision
(or part thereof) had not been contained in this Note, but only
to the extent it is invalid, illegal, or unenforceable.
15. Captions. The captions herein set forth are for
convenience only and shall not be deemed to define, limit, or
describe the scope or intent of this Note.
16. Applicable Law. Each of the Borrowers acknowledges and
agrees that this Note shall be governed by the laws of the State
of Maryland, even though for the convenience and at the request
of the Borrowers, this Note may be executed elsewhere.
17. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE
ARISING OUT OF THIS NOTE OR ANY RELATED INSTRUMENTS, AGREEMENTS
OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN
ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLIC
ABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR ARBITRATION OF COMMERCIAL DISPUTES OF ENDISPUTE,
INC., D/B/A J.A.M.S./ENDISPUTE ("J.A.M.S.") AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF AN INCONSISTENCY, THE
SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD
MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING ANY ACTION,
INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL
ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS INSTRUMENT,
AGREEMENT OR DOCUMENT RELATES IN ANY COURT HAVING JURISDICTION
OVER SUCH ACTION.
(A) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED
IN ▇▇▇▇▇▇▇▇▇▇ COUNTY, MARYLAND AND ADMINISTERED BY J.A.M.S. WHO
WILL APPOINT AN ARBITRATOR. IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS
WILL BE COMMENCED WITHIN NINETY (90) DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING
OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCING OF SUCH HEARING
FOR AN ADDITIONAL SIXTY (60) DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS
INSTRUMENT, NOTE SHALL BE DEEMED TO: (I) LIMIT THE APPLICABILITY
OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND
ANY WAIVERS CONTAINED IN THIS NOTE; OR (II) BE A WAIVER BY THE
LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF
THE LENDER: (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVI
SIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE LENDER MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR
ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY
ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS NOTE. NEITHER
THE EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF ANY ACTION FOR FORECLOSURE OR FOR PROVISIONAL OR
ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO ARBITRATE THE
MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES.
18. Consent to Jurisdiction. Each of the Borrowers
irrevocably submits to the jurisdiction of any state or federal
court sitting in the State of Maryland over any suit, action, or
proceeding arising out of or relating to this Note. Each of the
Borrowers irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the
laying of venue of any such suit, action, or proceeding brought
in any such court and any claim that any such suit, action, or
proceeding brought in any such court has been brought in an
inconvenient forum. Final judgment in any such suit, action, or
proceeding brought in any such court shall be conclusive and
binding upon the Borrowers and may be enforced in any court in
which the Borrowers are subject to jurisdiction by a suit upon
such judgment provided that service of process is effected upon
the Borrowers as provided in this Note or as otherwise permitted
by applicable law.
19. WAIVER OF TRIAL BY JURY. EACH OF THE BORROWERS HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE
BORROWERS, OR EITHER OF THEM, AND THE LENDER MAY BE PARTIES,
ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS NOTE OR (B)
THE FINANCING DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS
WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS
AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING
CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS NOTE.
THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY
THE BORROWERS, AND THE BORROWERS HEREBY REPRESENT THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY
INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY
WAY MODIFY OR NULLIFY ITS EFFECT. THE BORROWERS FURTHER
REPRESENT THAT THEY HAVE BEEN REPRESENTED IN THE SIGNING OF THIS
NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD
THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
IN WITNESS WHEREOF, the Borrowers have caused this Note to
be executed under seal by their duly authorized officers as of
the date first written above.
WITNESS/ATTEST: ARGUSS HOLDINGS, INC.
______________________________
By:______________________________(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
WITNESS/ATTEST: WHITE MOUNTAIN CONSTRUCTION
CABLE CORP.
______________________________
By:______________________________(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President