EXHIBIT 10.4
AMENDED AND RESTATED PROMISSORY NOTE
$________________ June 1, 2004
Sacramento, California
FOR VALUE RECEIVED, IPI Merger Sub II, Inc., a Delaware
corporation ("Payor"), promises to pay to the order of the
_______________________, or its assigns ("Holder"), the principal sum of
$_____________ with interest on the outstanding principal amount at the rate of
Six and One Half percent (6.5%) per annum (computed on the basis of actual
calendar days elapsed and a year of 360 days) or, if less, at the highest rate
of interest then permitted under applicable law. Interest shall commence with
the date hereof and shall continue on the outstanding principal until paid or
converted in accordance with the provisions hereof. This Note is issued pursuant
to a certain Agreement to Amend and Restate Promissory Note dated an even date
herewith, by and among Payor, Retail Technologies International, Inc., the
Holder, and the other holders of Notes.
1. DEFINITIONS. For purposes of this Note, the following terms shall
have the following meanings:
"AFFILIATE" shall mean with respect to any Person, any other Person (i)
which directly or indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first Person, (ii) which
beneficially owns or holds 10% or more of any class of the voting stock of such
first Person, or (iii) whereby 10% or more of the voting stock (or in the case
of a Person which is not a corporation, 10% or more of the equity interest) of
such other Person is beneficially owned or held by such first Person or by a
Subsidiary of such first Person.
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" (and the lower-case
versions of the same) shall have meanings correlative thereto.
"DEBT" shall mean: (1) indebtedness or liability for borrowed money;
(2) obligations as lessee under capital leases; (3) obligations under letters of
credit issued for the account of any Person; (4) all obligations arising under
bankers' acceptance facilities; and (5) all guaranties, endorsements (other than
for collection or deposit in the ordinary course of business), and other
contingent obligations to purchase, to provide funds for payment, to supply
funds to invest in any Person, or otherwise to assure a creditor against loss.
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"MERGER AGREEMENT" shall have the meaning set forth in the Agreement to
Amend and Restate Promissory Note dated an even date herewith.
"MONTHLY PAYMENT AMOUNT" shall mean $_____________.
"NOTE" shall mean this promissory note.
"NOTES" shall mean the aggregate notes issued by Payor to the
Shareholders pursuant to the Stock Repurchase Agreement (including, but not
limited to this Note).
"OBLIGATIONS" shall mean all obligations of Payor to Holder or any of
Holder's Subsidiaries howsoever created, arising or evidenced, whether direct or
indirect, joint or several, absolute or contingent, or now or hereafter
existing, or due or to become due, which arise out of or in connection with this
Note, and each other related document including, without limitation, all costs
incurred by Holder in connection with the enforcement of this Note.
"PERSON" shall mean an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PLEDGE AGREEMENT" shall mean the Pledge Agreement dated an even date
herewith by and among ▇▇▇▇ ▇▇▇▇▇▇▇, the Holder, and the other holders of Notes.
"SECURITY AGREEMENT" shall mean the Security Agreement dated an even
date herewith by and among the Payor, the Holder, and the other holders of
Notes.
"SENIOR INDEBTEDNESS" shall have the meaning set forth in Section 4
hereof.
"SHAREHOLDERS" shall mean the Securitiesholders set forth in the
Schedule of Shareholders attached thereto as EXHIBIT A to the Stock Repurchase
Agreement.
"STOCK REPURCHASE AGREEMENT" shall mean that certain Stock Repurchase
Agreement dated as of December 20, 2002, by and among Payor and the Shareholders
pursuant to which this Note was originally delivered.
"SUBSIDIARY" shall mean, with respect to any Person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities of other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held by the parent, or (b) that is, at any
time any determination is made, otherwise Controlled by, the parent or one or
more Subsidiaries of the parent and one or more Subsidiaries of the parent.
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2. GENERAL. This Note is one of a series of Notes issued by Payor and
amended and restated on the date hereof. The Notes, as amended and restated,
shall rank equally without preference or priority of any kind over one another,
and all payments on account of principal and interest with respect to any of the
Notes shall be applied ratably and proportionately on the outstanding Notes on
the basis of the principal amount of the outstanding indebtedness represented
thereby.
3. SECURITY AGREEMENT; PLEDGE AGREEMENT. In order to provide security
for the prompt and complete payment and performance when due of all of the
Payor's Obligations and liabilities to Holder arising out of, connected with or
related to this Note, Payor shall enter into (i) a Security Agreement with
▇▇▇▇▇▇ (and the other holders of the Notes) dated an even date herewith, and
(ii) a Pledge Agreement with ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
4. SUBORDINATION. The indebtedness evidenced by this Note is hereby
expressly subordinated in right of payment to the prior payment of principal and
unpaid accrued interest due with respect to all existing and future Debt of the
Payor ("Senior Indebtedness"), except for (i) the promissory notes issued to
▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to the Merger Agreement shall be
subordinated to the Notes with respect to payments of principal and interest
that become due hereunder, and (ii) any Debt that by its terms is subordinated
to the Notes. Subject to the rights, if any, of the holders of the Senior
Indebtedness under this Section 4 to receive cash, securities or other
properties otherwise payable or deliverable to the Holder of this Note, nothing
contained in this Section 4 shall impair, as between the Payor and the Holder,
the obligation of the Payor, subject to the terms and conditions hereof, to pay
to the Holder the principal hereof and interest hereon as and when the same
become due and payable, or shall prevent the Holder of this Note, upon default
hereunder, from exercising all rights, powers and remedies otherwise provided
herein or by applicable law.
5. MATURITY. Unless sooner paid in accordance with the terms hereof,
the entire unpaid balance of principal and all unpaid accrued interest shall
become fully due and payable on the earlier of (i) May 31, 2005, or (ii) the
acceleration of the maturity of this Note by the Holder upon the occurrence of
an Event of Default (such earlier date, the "Maturity Date").
6. PAYMENTS.
(a) FORM OF PAYMENT. All payments of interest and principal
shall be in lawful money of the United States of America to Holder, at the
address specified in the Agreement, or at such other address as may be specified
from time to time by ▇▇▇▇▇▇ in a written notice delivered to Payor. All payments
shall be applied first to accrued interest, and thereafter to principal.
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(b) MONTHLY PAYMENTS. Commencing on the last day of May 2004,
and on the last day of each calendar month until the earlier of May 31, 2005,
and any earlier payment in full of the indebtedness and obligations evidenced by
this Note, Payor shall pay Holder the Monthly Payment Amount.
(c) BALLOON PAYMENT. On May 31, 2005, Payor shall pay to
Holder all of the outstanding principal and accrued and unpaid interest under
this Note.
(d) LATE CHARGE. In the event that Payor fails to make any
payment of principal and interest within 10 days of its due date, such unpaid
amount shall commence accruing additional interest at a rate of eighteen percent
(18%) per annum.
7. PREPAYMENT. Payor shall have the right to prepay any and all amounts
owed under this Note in full or in part at any time without notice and without
penalty or premium.
8. AFFIRMATIVE COVENANTS. So long as any indebtedness under this Note
remains outstanding, Payor shall:
(a) COMPLIANCE WITH LAWS. Comply in all material respects with
applicable laws, rules, regulations and orders, such compliance to include,
without limitations, paying before the same become delinquent all taxes,
assessments, and governmental charges imposed upon it or upon its property
except for good faith contests for which adequate reserves are being maintained.
(b) NOTICE OF DEFAULTS AND EVENTS OF DEFAULTS. Provide to
Holder, as soon as possible and in any event within three (3) days after the
occurrence thereof, with written notice of each event which either (i) is an
Event of Default, or (ii) with the giving of notice or lapse of time or both
would constitute an Event of Default, in each case setting forth the details of
such event and the action which is proposed to be taken by Payor with respect
thereto.
(c) CONTINUANCE OF BUSINESS. Maintain its corporate existence,
licenses and privileges in good standing under and in compliance with all
applicable laws and continue to operate the business currently conducted by
Payor.
(d) INSURANCE. Promptly obtain and maintain in full force and
effect at all times with responsible insurance companies such insurance covering
its assets and properties, in such amounts and against such risks and with such
deductibles as an enterprise conducting a similar business under similar
business conditions as Payor would customarily maintain. To the extent that
▇▇▇▇▇ receives cash proceeds for a claim upon insurance policies covered by this
Section 8(d), Payor shall use such proceeds to recover the losses covered by
such policies. To the extent that Payor determines that the insurance proceeds
received exceeds the cost of the loss covered by such claims in its sole
discretion, such excess proceeds shall be used to repay the Notes on a pro rata
basis based upon the principal amount outstanding of each of the Notes.
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9. EVENTS OF DEFAULT.
(a) DEFINITION. For purposes of this Note, an Event of Default
shall be deemed to have occurred if:
(i) any indebtedness under this Note or any other
Note is not paid when and as the same shall become due and payable, whether at
maturity, by acceleration, or otherwise, and any such amount shall remain unpaid
for a period of the later of (A) 30 days after the date the amount becomes due
and payable, and written or e-mail notice of such non-payment has been delivered
to Payor by the Holder, (B) five (5) business days after written or e-mail
notice from the Holder, or (C) 45 days after the date the amount becomes due and
payable, regardless of whether any notice is delivered to the Payor by Holder;
or
(ii) default shall occur in the observance or
performance of any covenant, obligation or agreement of Payor under this Note
and any such observance or performance has not been cured for a period of the
later of (A) 60 days after the date of failure to observe or perform such
covenant, obligation or agreement or (B) fifteen (15) calendar days after
written or e-mail notice from the Holder; or
(iii) Payor (A) becomes insolvent or admits in
writing its inability to pay its debts as they mature (except that deferred
revenue and principal balance outstanding for the Notes shall not be taken in
account in determining if Payor is insolvent), (B) makes an assignment for the
benefit of creditors, or (C) applies for or consents to the appointment of a
receiver, trustee, or similar officer for it or for all or any substantial part
of its property or business, or such receiver, trustee or similar officer is
appointed, and such appointment shall continue undischarged for a period of 90
days after such appointment, or
(iv) any bankruptcy, insolvency, reorganization or
liquidation proceeding or other proceeding for relief under any bankruptcy law
or any law for the relief of debtors is instituted by or against Payor and is
not discharged within 90 days after such institution, or Payor or all or any
material part of its business is in the process of dissolution, liquidation,
windup or termination whether pursuant to the terms of any agreement, court
order, or otherwise.
(b) CONSEQUENCES OF EVENTS OF DEFAULT.
(i) If an Event of Default occurs, all indebtedness
under this Note shall, at the option of the Holder, become immediately due and
payable and, upon such election, Payor shall immediately pay to Holder all such
amounts. From and after an Event of Default, all indebtedness hereunder shall
accrue interest at the highest rate permitted by applicable law from and after
the Event of Default. ▇▇▇▇▇ agrees to pay Holder all reasonable out-of-pocket
costs and expenses incurred by Holder in any effort to collect indebtedness
under this Note, including reasonable attorney fees, and to pay interest at the
highest rate permitted by applicable law on such costs and expenses to the
extent not paid when demanded.
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(ii) Holder shall also have any and all other rights
which Holder may have been afforded under any contract or agreement at any time
and any other rights which Holder may have pursuant to applicable law.
10. SECURITY. This Note is secured by a pledge of stock of the Payor by
certain shareholders of Payor, but it is not otherwise guaranteed by the
shareholders of Payor.
11. LOST, STOLEN, DESTROYED OR MUTILATED NOTES. In case this Note shall
be mutilated, lost, stolen or destroyed, the Payor shall issue a new Note of
like date, tenor and denomination and deliver the same in exchange and
substitution for and upon surrender and cancellation of any mutilated Note, or
in lieu of this Note lost, stolen or destroyed, upon receipt of evidence
satisfactory to the Payor of the loss, theft or destruction of this Note.
12. GOVERNING LAW. This Note is to be construed in accordance with and
governed by the internal laws of the State of California without giving effect
to any choice of law rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of California to the
rights and duties of Payor and the Holder. All disputes and controversies
arising out of or in connection with this Note shall be resolved exclusively by
the state and federal courts located in Sacramento County in the State of
California, and each of Payor and the Holder hereto agrees to submit to the
jurisdiction of said courts and agrees that venue shall lie exclusively with
such courts.
13. AMENDMENT. Any term of this Note may be waived or amended only with
the written consent of Payor and the Holder (or their respective successors and
assigns). Any amendment or waiver effected in accordance with this paragraph
shall be binding upon the Payor and the Holder (or their respective successors
and assigns).
14. NOTICES. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Note shall be
made in accordance with Section 11 of the Security Agreement.
15. SEVERABILITY. If one or more provisions of this Note are held to be
unenforceable under applicable law, such provision shall be excluded from this
Note and the balance of the Note shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms.
16. TIME OF ESSENCE. Time is of the essence in the payment and
performance of each obligation hereunder.
17. ATTORNEYS' FEES. In the event of (a) any action or proceeding that
involves the protection, preservation or enforcement of the Holder's rights or
Payor's obligations under this Note (including, but not limited to, ▇▇▇▇▇▇'s
defense of any action by Payor in connection with the Loan), (b) Holder's
collection or enforcement without institution of litigation proceedings, or (c)
Holder's participation in any proceeding which is authorized under the terms of
this Note, Holder shall be entitled to payment, upon demand, from Payor of all
costs and expenses associated therewith, including reasonable attorneys' fees
and litigation expenses. Payor will pay Holder, upon demand, all reasonable
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attorneys' fees and expenses incurred in the representation of Holder in any
aspect of any bankruptcy or insolvency proceeding initiated by or on behalf of
Payor that concerns any of its obligations to Holder hereunder. In the event of
a judgment against one party concerning any aspect of this Note, the right to
recover post-judgment attorneys' fees incurred in enforcing the judgment shall
not be merged into and extinguished by any money judgment. The provisions of
this Section constitute a distinct and severable agreement from the other
contractual rights created by this Note.
18. NO WAIVER. If Holder delays in exercising or fails to exercise any
of its rights under this Note, that delay or failure will not constitute a
waiver of any of Holder's rights or of any breach, default, or failure of
condition under this Note. No waiver by Holder of any of its rights or of any
breach, default or failure of a condition under this Note shall be effective
unless it is stated in writing signed by ▇▇▇▇▇▇. Al1 of ▇▇▇▇▇▇'s remedies in
connection with this Note or under applicable law shall be cumulative, and
▇▇▇▇▇▇'s exercise of any one or more of those remedies will not constitute an
election of remedies.
19. USURY SAVINGS. It is the intent of Payor and Holder at all times to
comply with all applicable usury laws. If any applicable law is interpreted so
as to render any amount received by Holder hereunder as usurious, then all
excess amounts theretofore collected by Holder shall be credited against the
principal balance of this Note (or, if this Note has been or would be repaid in
full, refunded to Payor), and the provisions of this Note shall be immediately
reformed and the amounts thereafter collectible hereunder reduced, without the
execution of any other documents, instruments or agreements, so as to comply
with applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder.
20. SUCCESSORS AND ASSIGNS. This Note shall be binding upon, inure to
the benefit of and be enforceable by the Holder, the Payor and their respective
successors and assigns.
[REMAINDER OF ▇▇▇▇ LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the Payor has caused this Note to be duly executed
by its officers, thereunto duly authorized as of the date first above written.
IPI MERGER SUB II, INC.
By:
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Name:
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Title: President
By:
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Name:
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Title: Secretary
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