Assignment of Warrant Agreement
Page 12 of 35
among Xxxx XxXxx and Americare Management, Inc.
Exhibit 10.5
PROMISSORY NOTE
$ 1,250,000.00
May 2,
2002
FOR VALUE RECEIVED, the undersigned, Americare Management,
Inc., a Delaware corporation (hereinafter referred to as the
Maker), promises to pay to the order of Xxxx XxXxx (hereinafter
referred to as the Payee), in lawful money of the United States,
the principal sum of One Million Two-hundred and Fifty-thousand
dollars ($ 1,250,000.00) in accordance with the terms set forth
herein at the annual interest rate of 9.00%.
Section 1. Warrant Assignment Agreement. This Note is being
executed pursuant to the terms of the Warrant Assignment
Agreement dated of even date herewith between the Maker and the
Payee. This promissory note ("Note") is the "Promissory Notes"
set forth in Schedule 2.02 and otherwise discussed therein.
Capitalized terms used herein which are not defined herein shall
have the meanings assigned to them as set forth in the Stock
Purchase Agreement.
Section 2. Repayment.
(a) Principal and interest due under this Note shall be
paid by August 16, A.D. 2002 (the "Maturity Date"), and such
payment shall be in the amount of the then unpaid balance of
principal under this Note.
(b) The Maker shall have the right to prepay this Note at
any time and from time to time, in advance of maturity, without
premium or penalty. Each payment shall be applied to principal.
Section 3. Maker Events of Default. The following events shall
each constitute a Maker Event of Default hereunder:
(a) If the Maker defaults in the payment of principal due
on this Note when due and payable hereunder and such default
shall continue for a period of ten (10) business days;
(b) The Corporation shall sell or transfer any of the stock
shares currently owned by InterLink Home Health Care, Inc. in any
of its Subsidiaries of InterLink Home Health Care, Inc.;
(c) Any Subsidiary shall transfer or sell any of the home
health care licenses or provider agreements currently owned by
any Subsidiary;
(d) Any Subsidiary shall discharge or terminate either its
patients or employees outside of the normal course of business as
determined by the past practices of the Subsidiary, or in the
course of ceasing operations;
(e) The Phoenix Group Corporation shall breach its
employment agreement with Xxxx XxXxx; or
(f) If the Maker shall: (i) make a general assignment for
the benefit of creditors; (ii) apply for or consent to the
appointment of a receiver, trustee or liquidator for itself or
all or a substantial part of its assets; (iii) file a voluntary
petition in bankruptcy or file a petition or an answer seeking
reorganization or an arrangement with creditors or seeking to
take advantage of any other law (whether federal or state)
relating to relief of debtors, or admit (by answer, by default or
otherwise) the material allegations of a petition filed against
it in any bankruptcy, reorganization, insolvency or other
proceeding (whether federal or state) relating to relief of
debtors; (iv) suffer or permit to continue unstayed and in effect
for ninety (90) consecutive days any judgment, decree or order
entered by a court of competent jurisdiction, which approves an
involuntary petition seeking reorganization of the Maker or
appoints, pursuant to such a petition, a receiver, trustee or
liquidator for it or all or a substantial part of its assets; or
(v) be adjudicated a bankrupt or insolvent.
Section 4. Remedies.
Upon the happening of a Maker Event of Default, the Payee
may declare the entire amount of principal and interest that
remains outstanding hereunder immediately due and payable,
whereupon, the same shall forthwith become and be due and payable
without any presentment, demand or notice of any kind, all of
which are expressly waived by the Maker.
If a Maker Event of Default shall occur, the Maker shall pay
the Payee, on demand by the Payee, all reasonable costs and
expenses incurred by the Payee in connection with the collection
and enforcement of this Note.
In the event of a Maker Event of Default of this Note by
Maker, then Payee shall be able to foreclose upon the Warrant,
and Payee or Holder of this Note shall have the right to exercise
the Warrant of InterLink Home Health Care, Inc. prior to any sale
of the Common Stock.
Section 5. Miscellaneous.
(a) This Note shall be deemed to be made and entered into
under the laws of the State of Texas and for all purposes shall
be construed and enforced in accordance with the laws of the said
jurisdiction. This Note is performable in Dallas County, Texas.
(b) This Note shall be binding upon the Maker and its
permitted legal successors and assigns and shall inure to the
benefit of the parties hereto and their successors and assigns.
(c) Any failure by a party hereto to exercise any right or
remedy hereunder shall not constitute a waiver of the right to
exercise the same or any other right or remedy at any subsequent
time, and no single or partial exercise of any right or remedy
shall preclude other or further exercise of the same or any other
right or remedy.
(d) None of the terms and provisions hereof may be waived,
altered, modified, or amended except by an agreement in writing
signed by the Maker and the Payee.
(e) The Payer may assign its right to receive payments
under this Note to a third party upon prior written notice to the
Maker, which notice shall set forth the identity of such third
party and such third party's address. The Maker may not delegate
its obligations under this Note without the prior written consent
of the Payee.
(f) The Guarantor of this Note shall liable under this Note
to the same extent as the Maker, and in the event of default,
Payee may be able to proceed against the Guarantor without and
prior to seeking payment on this Note from Maker.
IN WITNESS WHEREOF, the Maker has executed this Note as of the
day and year first above written.
Americare Management, Inc.
/s/ Xxxxxx X. Xxxx
____________________________________
By Xxxxxx X. Xxxx, in his capacity as President
of Americare Management, Inc.
These obligations of Americare Management, Inc. under the terms
of this Note are expressly guaranteed in all respects by The
Phoenix Group Corporation.
The Phoenix Group Corporation
/s/ Xxxxxx X. Xxxx
____________________________________
By Xxxxxx X. Xxxx, in his capacity as President
of The Phoenix Group Corporation
