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Promissory Note
Date August 18, 1998
Amount $100,000.00 Maturity Date February 18, 1999
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Lender: Borrowers:
Xxxx and Xxxxxx Xxxxxx Medical Technology Systems, Inc.
00000 Xxxxxxxx Xxxx. 00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
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FOR VALUE RECEIVED, the undersigned Borrower unconditionally (and jointly
and severally, if more than one) promises to pay to the order of Lender, its
successors and assigns, without setoff, at its offices indicated at the
beginning of this Note, or at such other place as may be designated by Lender,
the principal amount of One Hundred Thousand and No/100 Dollars ($100,000.00),
or so much thereof as may be advanced from time to time in immediately available
funds, together with interest computed daily on the outstanding principal
balance hereunder, at an annual interest rate, and in accordance with the
payment schedule, indicated below.
1. Rate.
Fixed Rate. The Rate shall be fixed at twelve percent (12.0%) per annum.
Notwithstanding any provision of this Note, Xxxxxx does not intend to
charge and Borrower shall not be required to pay any amount of interest or other
charges in excess of the maximum permitted by the applicable law of the State of
Florida; if any higher rate ceiling is lawful, then that higher rate ceiling
shall apply. Any payment in excess of such maximum shall be refunded to Borrower
or credited against principal, at the option of Lender.
2. Accrual Method. Unless otherwise indicated, interest at the Rate set
forth above will be calculated by the 365/360 day method (a daily amount of
interest is computed for a hypothetical year of 360 days; that amount is
multiplied by the actual number of days for which any principal is outstanding
hereunder).
3. Payment Schedule. All payments received hereunder shall be applied first
to the payment of any expense or charges payable hereunder or under any other
loan documents executed in connection with this Note, then to interest due and
payable, with the balance applied to principal, or in such other order as Lender
shall determine at its option.
Single Payment. Principal and interest shall be paid in full in a single
payment on February 18, 1999.The maturity date of this Note shall be
automatically extended from February 18, 1999, to May 16, 1999, if the Borrower
satisfies all of the terms and conditions of a Loan Agreement of even date
herewith between Borrower and Lender.
4. Waivers, Consents and Covenants. Borrower, any endorser or guarantor
9hereof, or any other party hereto (individually an "Obligor" and collectively
"Obligors") and each of them jointly and severally: (a) waive presentment,
demand, protest, notice of demand, notice of intent to accelerate, notice of
acceleration of maturity, notice of protest, notice of nonpayment, notice of
dishonor, and any other notice required to be given under the law to any Obligor
in connection with the delivery, acceptance, performance, default or enforcement
of this Note, any endorsement or guaranty of this Note, or any other documents
executed in connection with this Note or any other note or other loan documents
now or hereafter executed in connection with any obligation of Borrower to
Lender (the "Loan Documents"); (b) consent to all delays, extensions, renewals
or other modifications of this Note or the Loan Documents, or waivers of any
term hereof or of the Loan Documents, or release or discharge by Lender of any
of Obligors, or release, substitution or exchange of any security for the
payment hereof, or the failure to act on the part of Lender, or any indulgence
shown by Xxxxxx (without notice to or further assent from any of Obligors), and
agree that no such action, failure to act or failure to exercise any right or
remedy by Lender shall in any way affect or impair the obligations of any
Obligors or be construed as a waiver by Lender of, or otherwise affect, any of
Lender's rights under this Note, under any endorsement or guaranty of this Note
or under any of the Loan Documents; and (c) agree to pay, on demand, all costs
and expenses of collection or defense of this Note or of any endorsement or
guaranty hereof and/or the enforcement or defense of Lender's rights with
respect to, or the administration, supervision, preservation, or protection of,
or realization upon, any property securing payment hereof, including, without
limitation, reasonable attorney's and paralegal=s fees, including fees related
to any suit, mediation or arbitration proceeding, out of court payment
agreement, trial, appeal, bankruptcy proceedings or other proceeding, in such
amount as may be determined reasonable by any arbitrator or court, whichever is
applicable.
5. Indemnification. Obligors agree to promptly pay, indemnify and hold
Lender harmless from all State and Federal taxes of any kind and other
liabilities with respect to or resulting from the execution and/or delivery of
this Note or any advances made pursuant to this Note. If this Note has a
revolving feature and is secured by a mortgage, Obligors expressly consent to
the deduction of any applicable taxes from each taxable advance extended by
Lender.
6. Prepayments. Prepayments may be made in whole or in part at any time
without premium or penalty. All prepayments of principal shall be applied in the
inverse order of maturity, or in such other order as Lender shall determine in
its sole discretion.
7. Delinquency Charge. To the extent permitted by law, a delinquency charge
may be imposed in an amount not to exceed four percent (4%) of any payment that
is more than fifteen days late.
8. Events of Default. The following are events of default hereunder:(a) the
failure to pay any obligation, liability or indebtedness of any Obligor to
Lender, whether under this Note or any Loan Documents, as and when due (whether
at maturity or by acceleration); (b) the failure to perform any other
obligation, liability or indebtedness of any Obligor to Lender, which failure is
not cured within fifteen (15) days from the date on which Lender provides
Borrower written notice of such failure to the extent that any such default can
be cured by Borrower; (c) the commencement of a proceeding against any Obligor
for dissolution or liquidation, the voluntary or involuntary termination or
dissolution of any Obligor or the merger or consolidation of any Obligor with or
into another entity; (d) the insolvency of, the business failure of, the
appointment of a custodian, trustee, liquidator or receiver for or for any of
the property of, the assignment for the benefit of creditors by, or the filing
of a petition under bankruptcy, insolvency or debtor's relief law or the filing
of a petition for any adjustment of indebtedness, composition or extension by or
against any Obligor; (e) the determination by Lender that any representation or
warranty made to Lender by any Obligor in any Loan Documents or otherwise or in
any financial statement or financial information submitted to Lender by any
Borrower is or was, when it was made, untrue or materially misleading; (f) the
entry of a judgment against any Obligor in excess of $50,000.00, which judgment
is not satisfied or bonded off within thirty (30) days from the date of entry of
the judgment; (g) the seizure or forfeiture of, or the issuance of any writ of
possession, garnishment or attachment which writ relates to any damage in excess
of $50,000.00 and which writ is not dismissed within thirty (30) days from the
date of issuance of any such writ; or (h) the failure of any Borrower's business
to comply in any material respect with any law or regulation controlling its
operation.
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9. Remedies upon Default. Whenever there is a default under this Note (a)
the entire balance outstanding hereunder and all other obligations of any
Obligor to Lender (however acquired or evidenced) shall, at the option of
Lender, become immediately due and payable and any obligation of Lender to
permit further borrowing under this Note shall immediately cease and terminate,
and/or (b) to the extent permitted by law, the Rate of interest on the unpaid
principal shall be increased at Xxxxxx's discretion up to the maximum rate
allowed by law, or if none, 18% per annum (the "Default Rate").The provisions
herein for a Default Rate shall not be deemed to extend the time for any payment
hereunder or to constitute a "grace period" giving Obligors a right to cure any
default. At Lender's option, any accrued and unpaid interest, fees or charges
may, for purposes of computing and accruing interest on a daily basis after the
due date of the Note or any installment thereof, be deemed to be a part of the
principal balance, and interest shall accrue on a daily compounded basis after
such date at the Default Rate provided in this Note until the entire outstanding
balance of principal and interest is paid in full. Upon a default under this
Note, Lender is hereby authorized at any time, at its option and without notice
or demand, to set off and charge against any deposit accounts of any Obligor (as
well as any money, instruments, securities, documents, chattel paper, credits,
claims, demands, income and any other property, rights and interests of any
Obligor), which at any time shall come into the possession or custody or under
the control of Lender or any of its agents, affiliates or correspondents, any
and all obligations due hereunder. Additionally, Lender shall have all rights
and remedies available under each of the Loan Documents, as well as all rights
and remedies available at law or in equity. Any judgment rendered on this Note
shall bear interest at the highest rate of interest permitted pursuant to
Chapter 687, Florida Statutes.
10. Non-waiver. The failure at any time of Lender to exercise any of its
options or any other rights hereunder shall not constitute a waiver thereof, nor
shall it be a bar to the exercise of any of its options or rights at a later
date. All rights and remedies of Lender shall be cumulative and may be pursued
singly, successively or together, at the option of Lender. The acceptance by
Lender of any partial payment shall not constitute a waiver of any default or of
any of Lender's rights under this Note. No waiver of any of its rights
hereunder, and no modification or amendment of this Note, shall be deemed to be
made by Lender unless the same shall be in writing, duly signed on behalf of
Lender; each such waiver shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Lender or the obligations of
Obligors to Lender in any other respect at any other time.
11. Applicable Law, Venue and Jurisdiction. This Note and the rights and
obligations of Borrower and Lender shall be governed by and interpreted in
accordance with the law of the State of Florida. In any litigation in connection
with or to enforce this Note or any endorsement or guaranty of this Note or any
Loan Documents, Obligors, and each of them, irrevocably consent to and confer
personal jurisdiction on the courts of the State of Florida or the United States
located within the State of Florida and expressly waive any objections as to
venue in any such courts. Nothing contained herein shall, however, prevent
Lender from bringing any action or exercising any rights within any other state
or jurisdiction or from obtaining personal jurisdiction by any other means
available under applicable law. The interest rate charged on this Note is
authorized by Chapter 655, Florida Statutes and Section 687.12, Florida
Statutes.
12. Partial Invalidity. The unenforceability or invalidity of any provision
of this Note shall not affect the enforceability or validity of any other
provision herein and the invalidity or unenforceability of any provision of this
Note or of the Loan Documents to any person or circumstance shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances.
13. Binding Effect. This Note shall be binding upon and inure to the
benefit of Borrower, Xxxxxxxx and Xxxxxx and their respective successors,
assigns, heirs and personal representatives, provided, however, that no
obligations of Borrower or Obligors hereunder can be assigned without prior
written consent of Xxxxxx.
14. Controlling Document. To the extent that this Note conflicts with or is
in any way incompatible with any other document related specifically to the loan
evidenced by this Note, this Note shall control over any other such document,
and if this Note does not address an issue, then each other such document shall
control to the extent that it deals most specifically with an issue.
15. WAIVER OF JURY TRIAL.AFTER CONSULTING WITH COUNSEL AND CAREFUL
CONSIDERATION, BORROWER AND XXXXXX (BY ITS ACCEPTANCE HEREOF) KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL
BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF THIS NOTE OR THE LOAN
DOCUMENTS, OR OUT OF ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL
OR WRITTEN), OR ACTIONS OF BORROWER OR LENDER.THIS WAIVER IS A MATERIAL
INDUCEMENT TO XXXXXX'S ACCEPTANCE OF THIS NOTE. Borrower represents to Lender
that the proceeds of this loan are to be used primarily for business. Xxxxxxxx
acknowledges having read and understood, and agrees to be bound by, all terms
and conditions of this Note and hereby executes this Note under seal as of the
date here above written.
NOTICE OF FINAL AGREEMENT.THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
If this Note is secured by a mortgage on real property, documentary stamp
taxes have been paid and affixed to the mortgage.
EXECUTION DATE: August 18, 1998
BORROWER:
MEDICAL TECHNOLOGY SYSTEMS, INC.
By:____________________________
____________________, as its
____________________________
