Exhibit 10.14
TERM NOTE
(CANADIAN BORROWERS)
U.S. $______________________ March __, 2004
FOR VALUE RECEIVED, the undersigned, COMMONWEALTH ▇▇▇▇▇▇
HOLDINGS LTD., a corporation amalgamated under the laws of the Province of
Alberta, Canada ("CSH"), CORRPRO CANADA, INC., a corporation amalgamated under
the laws of the Province of Alberta, Canada ("CORRPRO CANADA") and ▇▇▇▇▇
INSPECTIONS LTD., a corporation amalgamated under the laws of the Province of
Alberta, Canada ("▇▇▇▇▇", and together with Corrpro Canada and CSH,
collectively, "CANADIAN BORROWERS"), hereby jointly and severally promise to pay
to CAPITALSOURCE FINANCE LLC, a Delaware limited liability company, as
administrative, payment and collateral agent for the Lenders ("AGENT"), the
aggregate principal amount of________ Dollars ($_______ ), in lawful money of
the United States of America in immediately available funds, with interest
thereon, and all other Obligations related thereto under and pursuant to the
Revolving Credit, Term Loan and Security Agreement dated as of the date hereof
among Canadian Borrowers, the other Credit Parties named therein, Agent, and the
Lenders party thereto from time to time (as it may be amended, supplemented or
otherwise modified from time to time, the "LOAN AGREEMENT"), all at the times
and in the manner set forth in the Loan Agreement. Capitalized terms used but
not defined herein shall have the meanings given them in the Loan Agreement.
1. INTEREST AND PAYMENTS.
(a) Canadian Borrowers promise to pay interest on the
outstanding principal amount of this Term Note from the date of funding of the
Canadian Term Loan until such principal amount is indefeasibly paid in full in
cash. Interest on the outstanding principal amount of this Term Note shall be
due and payable monthly in arrears on the first calendar day of each calendar
month, commencing with the month of May 1, 2004, at an annual rate as set forth
in the Loan Agreement, calculated on the basis of a 360-day year and for the
actual number of calendar days elapsed in each interest calculation period.
(b) Payments of interest on the Canadian Term Loan and
other Obligations related to the Canadian Term Loan may be made automatically,
on the date when due, by Advances under the Revolving Facilities in accordance
with the provisions of the Loan Agreement. Any payments of interest and/or
principal or other amounts under this Term Note not paid automatically through
Advances under the Canadian Revolving Facility as provided in the Loan Agreement
shall be made only by wire transfer on the date when due, without offset,
deduction or counterclaim, in U.S. Dollars, in immediately available funds as
required in the Loan Agreement. Notwithstanding and without limiting or being
limited by any other provision of this Term Note or any other Loan Document, any
payments or prepayments received under this Term Note shall be credited and
applied in such manner and order as described in the Loan Agreement, as adjusted
from time to time pursuant to Sections 2.19 and 2.20 of the Loan Agreement.
(c) For purposes of the Interest Act (Canada) and
disclosures thereunder, whenever any interest or any fee to be paid by a
Canadian Borrower hereunder or in connection herewith is to be calculated on the
basis of any period of time that is less than a calendar year, the yearly rate
of interest to which the rate used in such calculation is equivalent is the rate
so used multiplied by the actual number of days in the calendar year in which
the same is to be ascertained and divided by 360. The rates of interest to be
paid under this Note and the Loan Agreement are nominal rates, and not effective
rates or yields. The principle of deemed reinvestment of interest does not apply
to any calculation of interest under this Note or the Loan Agreement.
2. MATURITY AND PRINCIPAL PAYMENTS. Unless earlier due and
payable in accordance with the Loan Agreement or accelerated under the Loan
Documents, this Term Note and the Canadian Term Loan shall mature, and all
amounts outstanding hereunder and all other Obligations under the Loan Documents
relating to the Canadian Term Loan, shall become due and payable in full on the
Maturity Date. Canadian Borrowers shall make payments on the principal amount of
the Canadian Term Loan outstanding hereunder as required pursuant to the Loan
Agreement.
3. DEFAULT RATE. Upon the occurrence and during the continuation
of an Event of Default, the Applicable Rate of interest in effect at such time
with respect to the Obligations shall be increased by the Default Rate.
4. LOAN AGREEMENT. This Term Note is referred to in, made
pursuant to, and entitled to the benefits of, the Loan Agreement. The Loan
Agreement, among other things, (i) provides for the making of the Canadian Term
Loan by Canadian Term Lenders to Canadian Borrowers in the aggregate maximum
dollar amount first mentioned above, (ii) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events upon the
terms and conditions therein specified, and (iii) contains provisions defining
an Event of Default and the rights and remedies of the parties thereto. This
Term Note is a secured note, entitled to the benefits of and security interests
granted in, among other things, the Loan Agreement and the other Loan Documents.
5. PREPAYMENTS. This Term Note may be prepaid in whole or in part
only as permitted in the Loan Agreement and shall be prepaid, in whole or in
part, as provided or required in the Loan Agreement. No payment or prepayment of
any amount shall entitle any Person to be subrogated to the rights of any
Canadian Term Lender hereunder or under the Loan Documents unless and until the
Obligations have been performed in full and indefeasibly paid in full in cash
and the Loan Agreement has been terminated.
6. PAYMENTS DUE ON A DAY OTHER THAN A BUSINESS DAY. If any
payment to be made on or under this Term Note is stated to be due or becomes due
and payable on a day other than a Business Day, the due date thereof shall be
extended to, and such payment shall be made on, the next succeeding Business
Day, and such extension of time in such case shall be included in the
computation of payment of any interest (at the interest rate then in effect
during such extension) and/or fees, as the case may be.
7. WAIVERS. Canadian Borrowers hereby waive set off,
counterclaim, demand, presentment, protest, all defenses with respect to any and
all instruments and all notices and demands of any description with respect to
this Term Note. Canadian Borrowers hereby agree that the provisions of the Loan
Agreement relating to waivers, rights and remedies of the parties hereto shall
apply to this Term Note.
8. LAWFUL LIMITS. This Term Note is expressly limited so that in
no contingency or event whatsoever, whether by reason of acceleration or
otherwise, shall the interest and other charges paid or agreed to be paid by
Canadian Borrowers for the use, forbearance or detention of money hereunder
exceed the maximum rate permissible under applicable law which a court of
competent jurisdiction shall, in a final determination, deem applicable hereto.
If, due to any circumstance whatsoever, fulfillment of any provision hereof, at
the time performance of such provision shall be due, shall exceed any such
limit, then the obligation to be so fulfilled shall be reduced to such lawful
limit, and any interest or any other charges of any kind received which might be
deemed to be interest under applicable law in excess of the maximum lawful rate
shall be applied in accordance with the Loan Agreement.
9. ACKNOWLEDGEMENT OF JOINT AND SEVERAL LIABILITY.
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Each of the Canadian Borrowers acknowledges that it is jointly and
severally liable for all of the Canadian Obligations under the Loan Documents.
Each of the Canadian Borrowers expressly understands, agrees and acknowledges
that (a) Canadian Borrowers are all Affiliated entities by common ownership, (b)
each of the Canadian Borrowers desires to have the availability of one common
credit facility instead of separate credit facilities, (c) each of the Canadian
Borrowers has requested that Canadian Term Lenders extend such a common credit
facility on the terms herein provided, (d) Canadian Term Lenders will be lending
against, and relying on a lien upon, all of Canadian Borrowers' assets that are
pledged as Collateral hereunder, even though the proceeds of any particular loan
made hereunder may not be advanced directly to a particular Canadian Borrower,
(e) each of the Canadian Borrowers will nonetheless benefit by the making of all
such loans by Canadian Term Lenders and the availability of a single credit
facility of a size greater than each could independently warrant, and (f) all of
the representations, warranties, covenants, obligations, conditions, agreements
and other terms contained in the Loan Documents shall be applicable to and shall
be binding upon each of the Canadian Borrowers.
10. GOVERNING LAW. This Term Note shall be governed by and
construed in accordance with the internal laws of the State of Maryland without
giving effect to its choice of laws provisions.
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[SIGNATURE PAGE TO TERM NOTE (CANADIAN BORROWERS)]
This Term Note is executed as of the date first written above.
COMMONWEALTH ▇▇▇▇▇▇ HOLDINGS
LTD., a corporation amalgamated under the
laws of the Province of Alberta, Canada
By: ________________________________________(SEAL)
Name:
Title
CORRPRO CANADA, INC., a corporation
amalgamated under the laws of the Province of
Alberta, Canada
By: ________________________________________(SEAL)
Name:
Title
▇▇▇▇▇ INSPECTIONS LTD., a corporation
amalgamated under the laws of the Province of
Alberta, Canada
By: ________________________________________(SEAL)
Name:
Title
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