Exhibit 10.3
SECOND AMENDED AND RESTATED TERM
NOTE
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$17,103,291.61
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Baltimore, Maryland
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April ,
2009
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FOR VALUE RECEIVED, TVI CORPORATION,
a Maryland corporation (“TVI”), CAPA MANUFACTURING
CORP., a Maryland corporation (“CAPA”), SAFETY TECH
INTERNATIONAL, INC., a Maryland corporation (“Safety
Tech”) and SIGNATURE SPECIAL EVENT SERVICES, INC., a Maryland
corporation, formerly named “TVI Holdings
One, Inc.” (“Signature TVI”), jointly and
severally (each of TVI, CAPA, Safety Tech and Signature TVI, a
“Borrower”; TVI, CAPA, Safety Tech and Signature TVI,
collectively, the “Borrowers”), promise to pay to the
order of BRANCH BANKING AND TRUST COMPANY, a North Carolina banking
corporation (the “Lender”), the principal sum of
SEVENTEEN MILLION ONE HUNDRED THREE THOUSAND TWO HUNDRED NINETY-ONE
DOLLARS AND SIXTY-ONE CENTS ($17,103,291.61) (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, the
unpaid Principal Sum shall bear interest in accordance with
Section 2.5 (Interest and Certain Fee Provisions) of the
Financing Agreement (as defined hereinafter).
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 on the unpaid Principal Sum
shall be due and payable in accordance with Section 2.5.3
(Payment of Interest) of the Financing Agreement;
(b)
Principal payments on the
outstanding Principal Sum shall be due and payable in accordance
with Section 2.2.3 (Term Loan Payments);
(c)
Notwithstanding anything contained
herein to the contrary, the Borrowers shall pay to the Lender the
Term Loan Mandatory Prepayments set forth in Section 2.2.4
(Mandatory Prepayments of the Term Loan) of the Financing
Agreement; and
(d)
Unless sooner paid, the unpaid
Principal Sum, together with interest accrued and unpaid thereon,
shall be due and payable in full on the earlier of the Term Loan
Maturity Date (as defined in the Financing Agreement).
3.
Default Interest.
Upon the occurrence and during the
continuance of an Event of Default (as hereinafter defined), the
unpaid Principal Sum shall bear interest thereafter at the
Post-Default Rate (as defined in the Financing Agreement) until
such Event of Default is cured.
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4.
Late Charges.
If the Borrowers shall fail to make
any payment under the terms of this Note within ten (10) 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.
Unless otherwise set forth in the
Financing Agreement, all payments, made on account of this Note
shall be applied in accordance with Section 2.2 (The Term
Loan) of the Financing Agreement.
6.
Prepayment.
Without implying any limitation on
the Borrowers’ obligation to pay the Early Termination Fee as
and when provided in Section 2.5.2 (Early Termination Fee) of
the Financing Agreement, the Borrowers may prepay the Principal Sum
in whole or in part at any time without premium or
penalty.
7.
Financing Agreement and Other
Financing Documents.
This Note is the “Term
Note” described in an Amended and Restated Financing and
Security Agreement dated as of February 22, 2008 by and among
the Borrowers and the Lender (as amended by (a) that certain
First Amendment to Amended and Restated Financing and Security
Agreement dated as of July 3, 2008, (b) that certain
Limited Forbearance Agreement dated as of November 20, 3008,
(c) that certain Acknowledgment and Agreement dated as of
January 30, 2009, (d) that certain Agreement for
Post-Petition Financing dated as of even date herewith and
(e) as otherwise 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. This Note is one of the “Financing
Documents” (as that term is defined 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 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.
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10.
Remedies.
Upon the occurrence and during the
continuance 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.
11.
Expenses.
The Borrowers 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 8.1 (Notices) of the Financing Agreement.
13.
Miscellaneous.
Each right, power, and remedy of the
Lender as provided for in th
