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EXHIBIT 10.57
NOTE AND LOAN AGREEMENT
Bridgeview, Illinois Date: As of July 15, 1997
FOR VALUE RECEIVED the undersigned, Xxxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx,
and Certex Dental Studio, Inc. (the "Makers") promise to pay to the order of
Xxxxx Dental Southeast, Inc., together with any successors or assigns (the
"Holder"), at 0000 X. 000xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 or such
other place as Holder may designate from time to time hereafter (hereinafter
referred to as the "Location"), the principal sum of Ninety-Six Thousand Three
Hundred Fifty-Seven and 38/100 Dollars ($96,357.38) - hereinafter referred to
as the "Principal Obligation".
The Principal Obligation unpaid from time to time shall bear interest from
July 15, 1997 until paid, computed at a daily rate equal to the daily rate
equivalent of Fourteen and three-quarters percent (14.75%) per annum
(hereinafter referred to as the "Stated Rate") computed on the basis of a
360-day year and actual days elapsed, (the Principal Obligation and interest
due at the Stated Rate are hereinafter referred to as the "Makers Primary
Indebtedness"). Makers' Primary Indebtedness shall be payable in accordance
with the amortization schedule attached hereto as Exhibit A, which has been
initiated by the Makers and is incorporated herein and made a part hereof. All
payments on account of Makers Primary Indebtedness shall be applied first to
accrued and unpaid interest and the remainder to principal. Each date that a
payment is due hereunder, as is set forth on Exhibit A, is hereinafter referred
to as the "Due Date". Any accrued but unpaid principal and interest still due
and owing shall be paid in full on July 14, 1998. If this Note, or any
obligation hereunder, is not paid to the Holder when due, then the Principal
Obligation unpaid from time to time shall bear interest from the Due Date until
paid at the highest interest rate permitted by law on the Due Date (hereinafter
referred to as the "Adjusted Stated Rate"). The foregoing notwithstanding, the
Adjusted Stated Rate shall be capped at a rate of ten percent (10%) over the
Stated Rate; and, if by operation of the immediately preceding sentence, the
Adjusted Stated Rate exceeds a rate of ten percent (10%) over the Stated Rate,
the Adjusted Stated Rate shall be reduced to a rate equal to ten percent (10%)
over the Stated Rate. The Makers' Primary Indebtedness and interest due at the
Adjusted Stated Rate is hereinafter referred to as "Makers' Secondary
Obligation".
Interest shall be payable by Makers to Holder with the Principal
Obligation of Makers' Primary Indebtedness, as applicable by the terms hereof,
or as billed by Holder to Makers, at the Location.
To secure this Note, the Makers hereby grant to the Holder a security
interest in all of the assets, inventory, accounts receivable and accounts of
the Makers and any sole proprietorship, partnership, corporation and other
entity in which and to the extent of which they have an interest therein and
their affiliates, whether now owned or hereafter acquired, and all immediate
and remote proceeds thereof. Such security interest shall only be subject to
presently existing, secured debt of the Makers. The Makers agree to
immediately take all necessary actions, and to execute any necessary filings,
to secure such security interest, and to provide the Holder with proof thereof.
The Makers hereby acknowledge that they have
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induced the Holder to accept this Note by their specific representation to the
Holder that they, neither individually or collectively, shall ever cause the
security by which this Note is to be secured, currently and in the future, to
be impaired in any way including, by way of illustration and not limitation, by
sale, assignment, concealment, removal and /or otherwise. Should the security
by which this Note is to be secure, currently and in the future, become
impaired, the Makers agree that such impairment shall constitute an Event of
Default, hereinafter defined.
Makers warrant and represent to Holder that the debt represented by this
Note was incurred solely for proper business purposes, and consistently with
all applicable laws and statutes.
The occurrence of any one of the following events shall constitute and
default by Makers (hereinafter referred to as the "Event of Default") under
this Note: (a) if Makers fail to pay Makers' Primary Indebtedness when due and
payable; or (b) if Makers fail to perform, keep or observe any term, provision,
condition, covenant, warranty or representation contained in the Note which is
required to be performed, kept or observed by Makers.
The Holder shall be entitled to receive payment in full of all interest
accruing hereon subsequent to the filing of a petition or the taking of any
other action commencing a bankruptcy or other similar proceeding or which would
accrue but for such proceeding or action of the under signed.
Upon an Event of Default hereunder, without notice by Holder to or demand
by Holder of Makers, subject to the Holder's sole and absolute election, all of
Makers' Primary Indebtedness shall be due and payable forthwith hereunder and
all remedies, including the remedies provided herein and any others by law and
equity, shall be available to the Holder. The acceptance by Holder of any
partial payment make hereunder after the time when any of Makers' Primary
Indebtedness become due and payable will not establish a custom, or waive any
rights of Holder to enforce prompt payment hereof: presentment, protest,
default, non0peyment, maturity, release, compromise, settlement, extension,
renewal of this Note and all other notices except as herein specifically
provided.
Makers agree to pay, upon Holder's demand therefor, any and all costs,
fees and expenses (including, solely by the way of illustration and not
limitation, attorneys' fees, costs and expenses) incurred in enforcing any of
Holder's rights, hereunder, and to the extent not paid the same shall become
part of Makers' Primary Indebtedness hereunder.
Makers hereby authorize, irrevocably, any attorney of any Court of Record
in any state or territory of the United States where the same is allowed by
law, in term time or vacation, at any time after occurrence of an Event of
Default hereunder, to appear for Makers, to waive the issuance and service of
process, and confess a judgement against the Makers for the amount of Makers'
Secondary Obligation due hereunder, including all casts, fees and expenses as
provided herein, further authorizing said attorney to waive and release all
errors which may intervene in any such proceeding and waive all right of appeal
and consent to immediate execution upon such judgement, hereby agreeing that no
writ of error or appeal will be prosecuted from such judgement, nor any xxxx in
equity filed to retrain the operation of said judgment, or any execution
thereon, and hereby ratifying and confirming all that said attorney may do by
virtue hereof. If this provision or any other provision of this Note or the
application thereof to any party or circumstance is held invalid or
unenforceable, the remainder of this
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Note and the application thereof to other parties or circumstances shall not be
affected thereby, the provisions of this Note being severable in any
such instance.
This Note is submitted by the undersigned to the Holder at the Location by
Priority Mail United States Postal Service and the undersigned and Holder
agrees that this Note shall be deemed to have been made and delivered thereat.
The undersigned and Holder agree that this Note shall be governed and
controlled by the laws of the State of Illinois as to interpretation,
enforcement, validity, construction, effect, choice of law and in all other
respects.
To induce Holder to accept this Note, Makers irrevocably agree that,
subject to Holder's sole and absolute election, all actions or proceedings in
any way, manner or respect, arising out of or from or related to this Note
shall be litigated in courts having situs within the County of Xxxx, State of
Illinois. Makers hereby consent and submit to the jurisdiction of any local,
state or federal court located within said county and state.
If this Note is signed by (1) more than one individual person, or (2) more
than one corporation and/or entity, or (3) one or more individual persons and
one or more than one corporation and/or business entity, then, in such
instance, said signatories shall be liable jointly and severally hereunder; but
the words "jointly" and severally" as used in this Note shall be disregarded in
the case it is signed by only one corporation or by only one individual person.
Any notice, designation, demand, consent or request required herein to be
given to or to be served upon Makers by Holder shall be in writing, be given or
served by Holder and be deemed to have been given or served: (1) upon mailing,
if addressed to Makers at 0000 X. Xxxxxxxxx Xxxx, Xxxxx X, Xxxxxxx Xxxxx, XX
00000 and sent by certified mail, postage prepaid with return receipt
requested, or (2) upon acceptance by United Parcel Service, Federal Express or
another courier service or a messenger service, if addressed to Makers at 0000
X. Xxxxxxxxx Xxxx, Xxxxx X, Xxxxxxx Xxxxx, XX 00000, and sent to Makers by
United Parcel Service, Federal Express or another courier service or a
messenger service; or (3) upon receipt by or for Makers if sent otherwise. Any
notice, designation, demand, consent, request or communication required herein
to be given to or to be served or otherwise given or served in relation to this
Note upon Holder by Makers shall be in writing, be given or served by Makers
and be deemed to have been given or deserved upon actual receipt by Holder and
shall be evidenced by a signed acknowledgement of receipt of the same by
Holder.
MAKERS:
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Xxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx
CERTEX DENTAL STUDIO, INC. BY:
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Xxxxxx Xxxxxxx, President Xxxxxxxx Xxxxxxx, Secretary
