EXHIBIT 10.47
TERM LOAN NOTE - FACILITY B
$1,750,000 Phoenix, Arizona
November 9, 2004
FOR VALUE RECEIVED, ONESOURCE TECHNOLOGIES, INC., a Delaware corporation
("Borrower"), promises to pay to the order of COMERICA BANK ("Lender", with
Lender and each subsequent transferee and/or owner of this Term Loan Note -
Facility B (the "Note"), whether taking by endorsement or otherwise, being
herein successively called "Holder"), at Comerica Bank, Xxxxxx Dodge Tower, Xxx
Xxxxx Xxxxxxx Xxx., Xxxxx 0000, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or at such
other place as Holder may from time-to-time designate in writing, the principal
sum of ONE MILLION SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($1,750,000),
or so much thereof as may be from time-to-time outstanding, together with
interest thereon, to be computed from the date hereof, at the interest rates
stated in the Credit Agreement of even date herewith between Borrower, as
borrower, and Lender, as lender, as the same may from time to time be amended,
modified, extended, renewed or restated (the "Credit Agreement").
This Note is issued pursuant to the Credit Agreement and is secured by the
Loan Documents and the Related Documents. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. In the event of any conflict between the provisions of this
Note and the provisions of the Credit Agreement, the provisions of the Credit
Agreement shall govern. All notices required or permitted in connection with
this Note shall be given in the manner provided in the Credit Agreement for the
giving of notices.
All amounts advanced by Xxxxxx under this Note shall be Facility B
Advances. Advances hereunder shall be made in accordance with the provisions of
the Credit Agreement pertaining to Facility B Advances, and the principal of the
indebtedness evidenced hereby, and interest thereon, shall be payable in the
manner and on the dates stated in the Credit Agreement. All principal, interest
and other charges and amounts to be paid hereunder shall be due and payable, in
full, on the Facility B Maturity Date. Payments under this Note shall be applied
in the manner provided in the Credit Agreement.
If Xxxxxxxx fails to make any payment of the indebtedness evidenced by this
Note on the date on which such payment becomes due and payable under the Credit
Agreement, Borrower shall pay to Holder, in addition to all other charges and
amounts then due and payable, a late charge equal to 5.0% of the amount of the
overdue payment.
Borrower may prepay the indebtedness evidenced by this Note in accordance
with the provisions of the Credit Agreement.
Time is of the essence of this Note.
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Borrower shall pay all costs and expenses, including reasonable attorneys'
fees and court costs, incurred in the collection or enforcement of all or any
part of this Note. All such costs and expenses shall be secured by the Loan
Documents and the Related Documents.
Failure or delay of Holder to exercise any right or remedy hereunder or
under the Credit Agreement with respect to any Default, Event of Default or
other circumstance shall not constitute a waiver of the right to exercise the
same with respect to any subsequent Default, Event of Default or other
circumstance or in the event of continuance of any existing Default or Event of
Default after demand for performance hereof.
Borrower: (a) to the maximum extent allowed by law but subject to the terms
of the Credit Agreement, waives any and all formalities in connection with this
Note, including (but not limited to) demand, diligence, presentment for payment,
protest and demand, and notice of extension, dishonor, protest, demand,
maturity, nonperformance and nonpayment; (b) agrees that Holder may extend the
time of payment or otherwise modify the terms of payment of any part or the
whole of the indebtedness evidenced by this Note, at the request of any person
liable thereon, and that any such extension or modification shall not alter or
diminish the liability of any person hereto; and (c) waives any other exemption
rights.
This Note shall be binding upon Borrower and its respective successors and
assigns, and shall inure to the benefit of Holder and any subsequent holders of
this Note and their respective successors and assigns.
This Note shall be governed by and construed and enforced in accordance
with the substantive laws (other than conflict laws) of the State of Arizona,
except to the extent Holder has greater rights or remedies under Federal law, in
which case such choice of Arizona law shall not be deemed to deprive Holder of
any such rights and remedies as may be available under Federal law. Borrower
consents to the personal jurisdiction and venue of the state courts located in
Maricopa County, Arizona in connection with any controversy related to this
Note, waives any argument that venue in any such forum is not convenient and
agrees that, at the option of Holder, any litigation initiated by any of them in
connection with this Note may be venued in the Superior Court of Maricopa
County, Arizona.
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS
IT MAY HAVE TO REQUIRE A TRIAL BY JURY IN ANY COURT ACTION PERTAINING TO THIS
NOTE, AND AGREES THAT ANY SUCH ACTIONS OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, this Note is executed as of the date first written
above.
ONESOURCE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: CEO
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