**Exhibit 4.4**

 

 
| **** | **C#: 44097  L#: 44098  Ls#: 8800021447** |
|------|-------------------------------------------|

 

**Promissory Note**

___________________________________________________________________________________________________________

 
| $1,720,000.00 |   | Funding  Date:                                         (*Year*) |
|---------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**FOR VALUE RECEIVED**, AIRNET SYSTEMS, INC.,an Ohio corporation (“Maker”), promises to pay to the order of **KeyEquipment Finance, a Division of Key Corporate Capital Inc.,**(“Holder”), the sum of $1,720,000.00 in lawful money of the United States ofAmerica (the “Principal”), with interest thereon as hereafter provided(“Interest”), to be paid in the manner set forth herein. This Note is executedpursuant to that certain security agreement (the “Security Agreement”) dated asof January    , 2002 between Maker and Holder. Capitalized termsused herein without definition shall have the meaning given them in theSecurity Agreement.

 

**1.             Interest Rate; Place of Payment**.  Interest on the balance of the Principaloutstanding on this Note shall accrue from the Funding Date of this Note andshall be due and payable at a fixed rate of five and seventy seven hundredthspercent (5.77%) per annum (the “Interest Rate”).  Interest shall be calculated on the basis of a 360-day year consistingof twelve 30-day months.  Payment of thePrincipal and Interest hereunder shall be made to Holder at 66 South PearlStreet, Post Office Box 1865, Albany, NY 12207-1865, or at such other place asHolder may designate from time to time in writing. Holder reserves the right torequire payment on this Note to be made by wired federal funds or otherimmediately available funds.

 

**2.             Repayment Terms**.The Principal and Interest shall be due and payable in sixty (60) consecutivemonthly installments payable in arrears, each in an amount equal to $33,068.78commencing and payable on the same date which is one month after the FundingDate and on the same day of each month thereafter. In addition, Maker will paya late payment charge of five percent (5%) of any payment due hereunder that isnot paid on or before the date due hereunder.

 

**3.             Security**.Payment of the Principal and Interest hereunder, and the performance andobservance by Maker of all agreements, covenants and provisions containedherein, is secured by a first priority security interest in the Collateral.

 

**4.             Prepayment**.

Except as contemplated by clause (3) of section 10 of the SecurityAgreement, Maker may not prepay, in whole or in part, the principal outstandinghereunder; provided, however, that commencing on the date following the twelvemonth anniversary of the Funding Date, Maker may prepay, in whole but not inpart, the principal outstanding hereunder by paying to Holder such outstandingprincipal, together with all accrued and unpaid interest thereon, plus aprepayment premium (“Prepayment Premium”) equal to a percentage of theoutstanding principal calculated as follows:

 
| **Months** |   | **Prepayment Premium**  |   |
|------------|--------|-------------------------|--------|
|       |   |                    |   |
| 1-12       |   | No prepayment permitted |   |
| 13-24      |   | 3                       | %      |
| 25-36      |   | 2                       | %      |
| 37-48      |   | 1                       | %      |
| 49-60      |   | 1                       | %      |

 

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**5.             Transfer or Assignment**.  Holder may at any time assign or otherwisetransfer or negotiate this Note in whole or in part, without any notice toMaker.  The rights and obligations ofMaker may not be assigned or delegated.

 

**6.             Application of Payments**.  Prior to an Event of Default, each paymentreceived on this Note shall be applied first to all costs of collection, thento unpaid late payment charges (if any) and Prepayment Premium (if any)hereunder, then to Interest as of the payment due date and the balance, if any,to the outstanding Principal as of the date received.  Upon the occurrence, and during the continuance, of an Event ofDefault, any payments in respect of the Secured Obligations and any proceeds ofthe Collateral when received by Holder in cash or its equivalent, will beapplied first to costs of collection and, thereafter, in reduction of theSecured Obligations in such order and manner as Holder may direct in its solediscretion, and Maker irrevocably waives the right to direct the application ofsuch payments and proceeds and acknowledges and agrees that Holder shall havethe continuing and exclusive right to apply any and all such payments andproceeds in the Holder’s sole discretion, notwithstanding any entry to thecontrary upon any of its books and records.

 

**7.             Events of Default**.  (a) Maker shall be in default if any of the following happens  (an “Event of Default”): (1) Maker fails tomake any installment of the Principal or Interest, or any other payment due andowing, under this Note within ten (10) days after the same becomes due andpayable; or (2) Maker fails to perform any other obligation required to beperformed by Maker under this  Note, theSecurity Agreement or any of the other Loan Documents for thirty (30) daysafter written notice from Holder of such failure; or (3) any representation,warranty or other statement by or on behalf of Maker in connection withthis  Note is false or misleading in anymaterial respect; or (4) an Event of Default has occurred and is continuingunder the Security Agreement.

(b) Notwithstanding anything to the contrary containedherein, upon the occurrence of an Event of Default, Holder may declare theentire outstanding balance of the Principal, together with all accrued andunpaid Interest thereon, immediately due and payable without notice or demandwhich amounts shall, together with all other sums due hereunder, accrueinterest from such acceleration until the date of actual payment at the DefaultRate (provided, however, that should there occur an Event of Default, and if avoluntary or involuntary petition under the United States Bankruptcy Code isfiled by or against Maker while such default remains uncured, the entireoutstanding balance of the Principal automatically shall be accelerated and dueand payable with interest thereon at the Default Rate), and Holder may exerciseany and all of its remedies hereunder, under the other Loan Documents and underApplicable Law. The remedies of Holder provided herein, in the SecurityAgreement and under Applicable Law shall be cumulative and concurrent and maybe pursued singly, successively or concurrently at the sole discretion ofHolder and may be exercised as often as occasion therefor shall occur.  The failure to exercise, or any delay in theexercise of, any right or remedy shall in no event be construed as a waiver,release or exhaustion of any such remedies.

 

**8.             Collection Costs**.  In addition to the Principal, Interest,Prepayment Premium (if any), and late payment charges (if any), Maker shall payHolder on demand, and Holder shall be entitled to collect all costs andexpenses of collection, including, without limitation, reasonable attorneys’fees, incurred in connection with enforcement of its rights and remedieshereunder and under the other Loan Documents, the protection or realization ofthe Collateral or in connection with Holder’s collection efforts, or inconnection with any bankruptcy or other judicial proceeding, whether or notsuit on this Note or any foreclosure proceeding is filed.  All such costs and expenses shall be payableon demand and, until paid, shall be Secured Obligations secured by the securityinterest granted under the Security Agreement and all other collateral, if any,held by Holder as security for Maker’s obligations under this Note.

 

**9.             Governing Law; Binding Agreement**.The provisions of this Note shall be binding upon, and shall inure to thebenefit of, the parties hereto and their respective successors and assigns. **THIS NOTE IS BEING**

 

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**DELIVERED IN THE STATE OF NEW YORK AND SHALL BE GOVERNED BY,AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDINGALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE WITHOUT GIVING EFFECT TOANY CHOICE OF LAW OR CONFLICT OF LAWS PROVISION OR RULE (WHETHER OF THE STATEOF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THELAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.**

 

**10.          More than One Signer**.  If more than one person or entity signs thisNote as a Maker, the obligations contained herein shall be deemed joint andseveral and all references to “Maker” shall apply both jointly and severally.

 

**11.          General**.  Maker represents and warrants that this Noteevidences a loan for business or commercial purposes.  Prior to signing this Note, Maker read and understood theprovisions hereof, and agrees to all terms and conditions contained herein.

 

**12.          Waiver**.  **MAKER AND ALL ENDORSERS, SURETIES, AND GUARANTORSHEREOF HEREBY JOINTLY AND SEVERALLY WAIVE PRESENTMENT FOR PAYMENT, DEMAND,NOTICE OF NON-PAYMENT OR DISHONOR, NOTICE OF INTENTION TO ACCELERATE THEMATURITY, NOTICE OF PROTEST AND PROTEST OF THIS NOTE. HOLDER AND MAKER HEREBY EACH WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BYJURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TOTHIS NOTE, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY ORTHEREBY, IN ANY ACTION OR PROCEEDING TO WHICH HOLDER OR MAKER MAY BE PARTIES,WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE, INCLUDINGWITHOUT LIMITATION ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, INWHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY, OF THIS NOTE ORTHE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.  THIS WAIVER IS MADE KNOWINGLY, WILLINGLY ANDVOLUNTARILY BY HOLDER AND THE MAKER WHO EACH ACKNOWLEDGE THAT NOREPRESENTATIONS HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIALBY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENTAMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE AND THE OTHERLOAN DOCUMENTS.**

 

**13.          Usury; Partial Invalidity**.  (a) At no time shall the Interest Rate (or the Default Rate or other amountspaid or collected hereunder) exceed the highest rate allowed by applicable lawfor this type of loan.  Should Holderever collect interest at a rate that exceeds such applicable legal limit, suchexcess will be credited to the Principal.

(b) Whenever possible,each provision of this Note shall be interpreted in such manner as to beeffective and valid under applicable law, but if any provision of this Noteshall be prohibited by or invalid under the laws of any applicablejurisdiction, such provision, as to such jurisdiction, shall be ineffective tothe extent of such prohibition or invalidity, without invalidating theremainder of such provision or the remaining provisions of this Note in anyother juris­diction.

 

**14.          Notices**.  All notices and other communications underthis Note shall be in writing and shall be addressed: (a) if to Maker, 3939INTERNATIONAL GATEWAY, COLUMBUS, OH 43219; and (b) if to Holder, Key EquipmentFinance, a Division of Key Corporate Capital Inc., 66 South Pearl Street, PostOffice Box 1865, Albany, NY 12207-1865, Attention: Account Manager, or suchother address as either party hereto shall communicate to the other party atits address specified above.  All suchnotices and other communications shall be deemed to have been duly given ifdelivered by hand, overnight courier or if sent by certified mail, returnreceipt requested, to the party to whom such notice is intended to be given,and shall be effective upon receipt.

 

**15.          Funding Date**.       The Funding Date for this Note shall bethe date on which Holder disburses funds hereunder. **TO THE EXTENT THE FUNDING DATE IS LEFTBLANK ABOVE, OR DOES NOT REFLECT**

 

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**THEACTUAL DATE THAT HOLDER DISBURSES FUNDS HEREUNDER, MAKER HEREBY AUTHORIZESHOLDER TO WRITE IN THE CORRECT DATE AT THE TIME OF DISBURSEMENT.**

 

**IN WITNESS WHEREOF**,Maker, intending to be legally bound, has caused this Note to be duly executedon the day and year first above written.

 

**MAKER:**

 

AIRNET SYSTEMS, INC.

 
| ***X*** |   |   |
|---------|--------|--------|
| Name:   |
| Title:  |
|    |

 
| STATE OF  | )      |
|-----------|--------|
|      | ) ss.: |
| COUNTY OF | )      |

 

On this           (*Day*)day of                                              (*Month*),                      (*Year*), before me the subscriber personally appeared                                                                  ,who being by me duly sworn, did depose and say; that (s)he resides at                           County,State of                                       :that (s)he is a                                                                  of                                                              ,the corporation described in and which executed the foregoing instrument; andthat (s)he signed his/her name thereto by order of the Board of Directors ofsaid corporation.

 
|          |   |
|---------------|--------|
| NOTARY PUBLIC |

 

My Commission Expires:

 

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