AMENDED AND RESTATED TERM NOTE
------------------------------
$11,250,000.00 Philadelphia, Pennsylvania
Dated: May 24, 2001
FOR VALUE RECEIVED AND INTENDING TO BE LEGALLY BOUND, the undersigned
(jointly and severally, "Borrower"), hereby promises to pay to the order of
FLEET NATIONAL BANK, as successor by merger to Summit Bank ("Lender") the
principal sum of Eleven Million Two Hundred Fifty Thousand Dollars
($11,250,000.00) outstanding under the Term Loan established for the benefit of
Borrower pursuant to the terms of that certain Amended and Restated Loan and
Security Agreement dated March 9, 1999 among Borrower, Fleet National Bank, as
successor-by-merger to Summit Bank, as Agent and the Lenders from time to time a
party thereto, as amended by (i) that certain First Amendment to Amended and
Restated Loan and Security Agreement dated December 17, 1999, (ii) that certain
Second Amendment to Amended and Restated Loan and Security Agreement dated May
24, 2000, and (iii) that certain Third Amendment to Amended and Restated Loan
and Security Agreement dated of even date herewith (such Amended and Restated
Loan and Security Agreement as amended and as the same may hereafter be amended,
supplemented or restated from time to time, being the "Loan Agreement"),
together with interest thereon, upon the following terms:
1. Term Note. This Note is one of the "Term Notes" as defined in the Loan
Agreement and, as such, shall be construed in accordance with all terms and
conditions thereof. Capitalized terms not defined herein shall have such meaning
as provided in the Loan Agreement. This Note is entitled to all the rights and
remedies provided in the Loan Agreement and the Loan Documents and is secured by
all collateral as described therein.
2. Interest Rate. Interest on the unpaid principal balance hereof will
accrue from the date of advance until final payment thereof at the applicable
rate per annum described in Section 5.4 of the Loan Agreement.
3. Default Interest. Interest will accrue on the outstanding principal
amount hereof, following the occurrence of an Event of Default, until paid at
the applicable rate per annum described in Section 5.9 of the Loan Agreement
(the "Default Rate").
4. Post Judgment Interest. Any judgment obtained for sums due hereunder
or under the Loan Documents will accrue interest at the Default Rate until paid.
5. Computation. Interest will be computed on the basis of a year of three
hundred sixty (360) days and paid for the actual number of days elapsed.
6. Payments. Principal and interest hereunder shall be paid in the manner
provided for in Section 6.4 of the Loan Agreement.
7. Default; Remedies. Upon the occurrence of an Event of Default, Lender,
at its option, upon notice to ▇▇▇▇▇▇▇▇, may declare immediately due and payable
the entire unpaid balance of principal and all other sums due by ▇▇▇▇▇▇▇▇
hereunder or under the Loan Documents, together with interest accrued thereon at
the applicable rate specified above. Payment thereof may be enforced and
recovered in whole or in part at any time and from time to time by one or more
of the remedies provided
to Lender in this Note or in the Loan Documents or as otherwise provided at law
or in equity, all of which remedies are cumulative and concurrent.
8. Waivers. Borrower and all endorsers, jointly and severally, waive
presentment for payment, demand, notice of demand, notice of nonpayment or
dishonor, protest and notice of protest of this Note, and all other notices in
connection with the delivery, acceptance, performance, default or enforcement of
the payment of this Note, except for such notices, if any, as are expressly
required to be delivered to Borrower under the Loan Documents.
9. Miscellaneous. If any provisions of this Note shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision hereof. This Note has been delivered in and shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without regard to the law of conflicts. This Note shall be binding upon ▇▇▇▇▇▇▇▇
and upon ▇▇▇▇▇▇▇▇'s successors and assigns and shall benefit ▇▇▇▇▇▇ and its
successors and assigns. The prompt and faithful performance of all of ▇▇▇▇▇▇▇▇'s
obligations hereunder, including without limitation, time of payment, is of the
essence of this Note.
10. Joint and Several Liability. All agreements, conditions, covenants and
provisions of this Note shall be the joint and several obligation of each
Borrower.
11. Confession of Judgment. ▇▇▇▇▇▇▇▇ HEREBY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF
PENNSYLVANIA, OR IN ANY OTHER JURISDICTION WHICH PERMITS THE ENTRY OF JUDGMENT
BY CONFESSION, TO APPEAR FOR BORROWER AT ANY TIME AFTER THE OCCURRENCE OF AN
EVENT OF DEFAULT UNDER THE LOAN AGREEMENT IN ANY ACTION BROUGHT AGAINST BORROWER
ON THIS NOTE OR THE LOAN DOCUMENTS AT THE SUIT OF LENDER OR AGENT, WITH OR
WITHOUT COMPLAINT OR DECLARATION FILED, WITHOUT STAY OF EXECUTION, AS OF ANY
TERM OR TIME, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE
ENTIRE UNPAID OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AND ALL OTHER SUMS TO BE
PAID BY BORROWER TO OR ON BEHALF OF BANK PURSUANT TO THE TERMS HEREOF OR OF THE
LOAN DOCUMENTS AND ALL ARREARAGES OF INTEREST THEREON, TOGETHER WITH ALL COSTS
AND OTHER EXPENSES AND AN ATTORNEY'S COLLECTION COMMISSION OF FIFTEEN PERCENT
(15%) OF THE AGGREGATE AMOUNT OF THE FOREGOING SUMS, BUT IN NO EVENT LESS THAN
$5,000.00; AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY AFFIDAVIT
SHALL BE A SUFFICIENT WARRANT.
THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY
ANY EXERCISE THEREOF BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL
PAYMENT IN FULL OF ALL THE AMOUNTS DUE HEREUNDER. ▇▇▇▇▇▇▇▇ ACKNOWLEDGES THAT IT
HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF
THIS NOTE AND THAT IT KNOWINGLY WAIVES ITS RIGHT TO BE HEARD PRIOR TO THE ENTRY
OF SUCH JUDGMENT AND UNDERSTANDS THAT, UPON SUCH ENTRY, SUCH
2
JUDGMENT SHALL BECOME A LIEN ON ALL REAL PROPERTY OF BORROWER IN THE COUNTY
WHERE SUCH JUDGMENT IS ENTERED.
12. Prior Notes. ▇▇▇▇▇▇▇▇ acknowledges and agrees that this Note, together
with the other Notes, re-evidences existing indebtedness of certain Borrowers to
Agent and this Note, together with the other Notes, is given in substitution of,
and not as payment for, all prior notes evidencing such indebtedness and shall
not be deemed a novation thereof.
IN WITNESS WHEREOF, Borrower, intending to be legally bound hereby, has
caused this Amended and Restated Term Note to be duly executed the day and year
first above written.
NOBEL LEARNING COMMUNITIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President
MERRYHILL SCHOOLS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President
NEDI, INC.
By: /s/ S. Good
-------------------------------------
S. Good, President
-----------------------------
MERRYHILL SCHOOLS NEVADA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Treasurer
PALADIN ACADEMY, L.L.C., formerly known
as Nobel Learning Solutions L.L.C.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
-----------------------------
3
NOBEL EDUCATION DYNAMICS FLORIDA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
THE ACTIVITIES CLUB, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, President
HOUSTON LEARNING ACADEMY, INC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
NOBEL SCHOOL MANAGEMENT SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
NOBEL LEARNING TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
4