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EXHIBIT 10(b)(2)
PROMISSORY NOTE
(No Recourse Note)
Dated as of February 17, 2000
Executed at: _______________________
FOR VALUE RECEIVED, XXXXXX XXXXXX ("Maker") hereby promises to pay to
the order of XXXXX EQUITY, INC., a Florida corporation ("Lender"), at its
offices at 0000 Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (or at such
other place or places as Lender or the holder hereof may designate in writing,
from time to time), the principal sum advanced to Maker pursuant to the Loan
Agreement (defined below) as such principal sum is outstanding as indicated on
the Draw Schedule (defined below) upon Maker's purchase of Loan Stock pursuant
to Plan Purchases or Subsequent Plan Purchases (as defined in the Loan
Agreement), or such lesser sum as has been advanced and is outstanding at the
time when payment is due hereunder, in lawful money of the United States of
America, together with interest accruing thereon from the date of such advances
at the rates and times hereinafter provided, calculated on the daily principal
balances from time to time outstanding. This Promissory Note (this "Note") is
given by Maker pursuant to the terms of that certain Stock Purchase and Loan
Agreement dated the date hereof between Maker and Lender (the "Loan
Agreement"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Loan Agreement.
Lender is hereby authorized to record on the Draw Schedule attached
hereto as Exhibit "A" ("Draw Schedule") and incorporated herein the (a) date
and amount of each advance by Lender, and (b) date and amount of each principal
payment made by Maker with respect to the principal amount outstanding under
this Note; provided, however, that the failure of Lender to make any such entry
shall not limit or otherwise affect the obligations of Maker under this Note,
or the right of Lender to enforce the terms of this Note against Maker. The
aggregate unpaid principal amount advanced and Outstanding as set forth from
time to time in the Draw Schedule, or any continuation thereof, shall be
rebuttable presumptive evidence of the unpaid principal amount due under this
Note.
1. Interest.
Interest shall accrue on the unpaid principal balance of this
Note from the date such principal is advanced as set forth in
the Draw Schedule at the LIBOR Market Index Rate, plus one
hundred fifty (150) basis points, as that rate may change on
each Payment Date (defined below) in accordance with changes
in the LIBOR Market Index Rate (the "Interest Rate"). "LIBOR
Market Index Rate," for any day, is the rate for 1 month U.S.
dollar deposits as reported on Telerate page 3750 as of 11:00
a.m., London time, on such day, or if such day is not a
London business day, then the immediately preceding London
business day (or if not so reported, then as determined by
Lender from another recognized source of interbank
quotation). Notwithstanding the foregoing, the Interest Rate
hereunder shall be limited to a maximum of ten percent (10%)
per annum.
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2. Payments. The debt evidenced by this Note shall be repaid as
follows:
(i) Commencing on the last calendar day of June, and
thereafter on the last calendar day of each of the
months of September, December, March and June (each
a "Payment Date") until the Maturity Date (defined
below), monthly payments of interest only, in
arrears, at the Interest Rate, shall be due and
payable by Maker to Lender;
(ii) Unless payable earlier pursuant to the terms hereof,
the total unpaid principal amount disbursed by
Lender to Maker under this Note, and then
outstanding, plus all accrued but unpaid interest
and any other sums owing by Maker to Lender under
the terms of the Loan Documents, shall be due and
payable on the last day of the earlier of: (i) ten
(10) years from the date of this Note, to wit:
February 17, 2010; or (ii) the second anniversary of
Maker's termination of employment by Lender under
the Employment Agreement with "Cause" pursuant to
Section 4(c) of Maker's Employment Agreement with
Lender, dated as of February 17, 2000 (such date is
referred to herein as the "Maturity Date"); and
3. Prepayment. This Note may be prepaid in whole or in part at
any time without penalty or premium.
4. Late Charge. In the event that Maker fails to pay any payment
of principal and/or interest within thirty (30) days after such payment is due,
a late charge equal to five percent (5%) of the amount of such payment shall be
due and payable. From and after the date upon which any payment of principal or
interest hereunder becomes due and payable (whether by acceleration or
otherwise) if the same is not paid within thirty (30) days of such due date,
interest shall be payable on all sums outstanding hereunder at the maximum rate
permitted by applicable law, and shall be due and payable ON DEMAND.
5. Intent Not to Commit Usury. Nothing herein contained, nor any
transaction related thereto, shall be construed or so operate as to require
Maker to pay interest at a greater rate than is now lawful in such case to
contract for, or to make any payment, or to do any act contrary to applicable
law. Should any interest or other charges paid by Maker, or parties liable for
the payment of this Note, in connection with the loan evidenced by this Note,
Loan Agreement securing the payment of this Note, or any other document
delivered in connection with the loan evidenced hereby, result in the
computation or earning of interest in excess of the maximum rate of interest
that is legally permitted under applicable law, then any and all such excess
shall be and the same is hereby waived by Lender and holder hereof, and any and
all such excess shall be automatically credited against and in reduction of the
balance due under this indebtedness, and the portion of said excess which
exceeds the balance due under this indebtedness shall be paid by Lender to
Maker and parties liable for the payment of this Note.
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6. Default. In addition to such other remedies as may be
available to Lender, upon the occurrence of any Event of Default (as defined in
the Loan Agreement or the Security Agreement) which remains uncured for a
period of thirty (30) days, then Lender or the holder hereof may, elect to
declare and may demand payment in full of the entire unpaid principal amount
outstanding hereunder, together with interest accrued thereon.
7. NO RECOURSE AS TO PRINCIPAL. EXCEPT AS PROVIDED BELOW, THIS
NOTE SHALL BE NON-RECOURSE TO MAKER SUCH THAT LENDER SHALL NOT SEEK TO ENFORCE
AGAINST MAKER INDIVIDUALLY, ANY MONETARY JUDGEMENT WITH RESPECT TO THE SUMS DUE
UNDER THIS NOTE EXCEPT THROUGH RECOURSE TO THE COLLATERAL GIVEN AS SECURITY FOR
THIS NOTE AND SOLELY AGAINST SUCH COLLATERAL. THE NON-RECOURSE NATURE OF THIS
NOTE IS A MATERIAL INDUCEMENT TO MAKER BORROWING FUNDS FROM LENDER UNDER THIS
NOTE, ENTRY INTO THE LOAN AGREEMENT AND OTHER LOAN DOCUMENTS. NOTWITHSTANDING
THE FOREGOING, MAKER SHALL BE INDIVIDUALLY LIABLE FOR ONE HUNDRED PERCENT
(100%) OF THE INTEREST DUE UNDER THE NOTE INSOFAR AS THE COLLATERAL GIVEN AS
SECURITY FOR REPAYMENT IS INSUFFICIENT TO PAY SUCH INTEREST.
8. Waivers; Attorneys' Fees; Venue. Maker and all endorsers and
guarantors of this Note hereby waive demand, presentment, notice of non-payment
(except as provided herein), dishonor and protest, and agree in case suit shall
be brought for the collection hereof, or if it is necessary to place the same
in the hands of an attorney for collection, to pay reasonable attorneys' fees
for making such collection, including but not limited to, all fees and costs
incident to any appellate, post-judgment, and bankruptcy proceedings that may
result, whether the holder hereof is obligated therefor or not. Maker agrees
that Palm Beach County, Florida is the proper venue for any and all legal
proceedings arising out of this Note.
9. Governing Law. The provisions of this Note and the provisions
of the Loan Agreement, and any other document or instrument evidencing or
securing the loan evidenced by this Note, shall be construed according to the
laws of the State of Florida, except if federal law would allow the payment of
interest hereunder at a higher maximum rate than would applicable Florida law,
such federal law shall apply to the determination of the highest applicable
lawful rate of interest hereunder.
10. Amendment. This Note may not be amended or modified, nor
shall any waiver of any provisions hereof be effective, except by an instrument
in writing executed by the holder of this Note.
11. WAIVER OF JURY TRIAL. THE PARTIES HERETO MUTUALLY AND
WILLINGLY WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY AND ALL CLAIMS MADE BETWEEN
THEM WHETHER NOW EXISTING OR ARISING IN THE FUTURE, INCLUDING WITHOUT
LIMITATION, ANY AND ALL CLAIMS, DEFENSES, COUNTERCLAIMS, CROSSCLAIMS, THIRD
PARTY CLAIMS AND INTERVENOR'S
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CLAIMS WHETHER ARISING FROM OR RELATED TO THE NEGOTIATION, EXECUTION AND
PERFORMANCE OF THE TRANSACTIONS TO WHICH THIS DOCUMENT RELATES.
IN WITNESS WHEREOF, Maker has executed and delivered this Note to
Lender as of the date and year first above written.
MAKER:
/s/ Xxx Xxxxxx
XXXXXX XXXXXX, individually
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EXHIBIT "A"
DRAW SCHEDULE FOR DEMAND
PROMISSORY NOTE DATED _______ __, 2000
Amount of Amount of Balance of
Date of Principal Principal Principal Signature
Transaction Advanced Repaid Outstanding of Maker
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/s/ Xxx Xxxxxx
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Amount of Amount of Balance of
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Transaction Advanced Repaid Outstanding of Maker
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Amount of Amount of Balance of
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Transaction Advanced Repaid Outstanding of Maker
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