EXHIBIT 4.6
STOCK PURCHASE NOTE
$900,000.00 September 29, 1994
FOR VALUE RECEIVED, the undersigned, SHAMROCK INVESTMENTS, a
California general partnership ("Maker"), hereby unconditionally promises to pay
to the order of PHP HEALTHCARE CORPORATION, a Delaware corporation, or its
successors or assigns ("Payee"), on or before September 29, 1999, ("Maturity
Date") the principal sum of NINE HUNDRED THOUSAND DOLLARS ($900,000.00), or such
other amount as at the time may be outstanding hereunder, TOGETHER WITH all
accrued but unpaid interest thereon computed at the rate per annum set forth
below and all unpaid expenses and fees connected herewith.
Prior to the Maturity Date, the outstanding principal amount hereunder
will bear interest, computed daily until paid, at a fixed rate per annum of
7.0%. Interest will be calculated, accrued and imposed on the basis of a 365-day
year for the actual number of days elapsed.
Prior to the Maturity Date, accrued interest hereunder (but not
principal) will be due and payable annually in arrears on the 30th day of April,
commencing on April 30, 1995. Payee is authorized to note or endorse the date
and amount of each payment and prepayment of principal and/or interest hereunder
on a schedule annexed to and constituting a part hereof. Such notations or
endorsements, if made, will constitute PRIMA FACIE evidence of the information
endorsed on such schedule, but the failure of Payee to make any such notation or
endorsement will not limit or otherwise affect the obligations of Maker
hereunder.
At any time, upon two (2) business days written notice to Xxxxx, Maker
may prepay the outstanding principal balance hereunder in whole or in part
without premium or penalty, except as otherwise provided herein. Payments and
prepayments will be applied by Xxxxx in the following order: (a) first to the
payment of any fees and charges due hereunder, (b) then to any obligations of
Maker for the payment of expenses due hereunder, (c) then to the payment of
interest due and owing hereunder, (d) then to the principal indebtedness due
hereunder, and (e) then to any other indebtedness of Maker to Payee.
All payments of principal, interest (including any default interest),
fees and any other amounts due hereunder, including any prepayments thereof,
must be made by Maker to Payee in immediately available funds on or before
twelve o'clock (12:00) noon on the due date therefor at the principal office of
Payee at 00000 Xxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx
X. Xxxxxx, Vice President, Finance, or at such other place as the Payee or any
other holder of this Note may at any time or from time to time designate in
writing to Maker.
Whenever any payment to be made hereunder is due on a day that is not
a business day (I.E., any day other than a Saturday, Sunday or legal public
holiday), such payment may be made on the next succeeding business day, and such
extension of time will be included
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in the computation of interest hereunder. Any funds received by Payee after
12:00 noon on any day will be deemed to be received on the next succeeding
business day.
Upon the occurrence and during the existence of a default hereunder
(including, without limitation, failure or refusal by Maker to deliver payment
of the outstanding balance plus interest on the Maturity Date), Maker hereby
agrees (to the maximum extent not prohibited by applicable law) to pay to Payee
interest on any indebtedness outstanding hereunder at the rate of three percent
(3.0%) per annum in excess of the rate then otherwise applicable to such
indebtedness.
If, after a default hereunder, counsel is employed to collect the
indebtedness evidenced hereby or to protect the security hereof, Maker agrees to
pay Payee (to the maximum extent not prohibited by applicable law) reasonable
attorneys' fees and all other costs and expenses incurred in connection with
such collection.
Maker hereby waives diligence, presentment, protest, demand for
payment, notice of protest and non-payment, notice of dishonor, and any and all
other notices or demands in connection with the delivery, acceptance,
performance, default, acceleration or enforcement of this Note. No delay on the
part of Payee in exercising any power or right hereunder will operate as a
waiver thereof nor will any single or partial exercise of any power or right
hereunder preclude other or further exercise thereof or the exercise of any
other power or right. This Note is binding on Maker and its successors and
assigns. If any term or provision of this Note is held invalid, illegal or
unenforceable, the validity of all other terms and provisions hereof will in no
way be affected thereby.
Nothing contained in this Note will require Maker to pay interest at a
rate prohibited by applicable law. If interest payable to Payee on any date
would be in a prohibited amount, such interest will be automatically reduced to
an amount that is not prohibited and interest for subsequent periods, to the
extent not prohibited, will be increased by the amount of such reduction until
payment of the full amount of each such reduction. Any prohibited amount
previously paid will be credited towards reduction of the outstanding principal
balance.
MAKER AND PAYEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF MAKER OR PAYEE. MAKER ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION, THAT IT HAS
BEEN ADVISED BY LEGAL COUNSEL IN CONNECTION HEREWITH, AND THAT THIS PROVISION
IS A MATERIAL INDUCEMENT FOR PAYEE ENTERING INTO THE STOCK PURCHASE AGREEMENT
(THE "STOCK PURCHASE AGREEMENT") BY AND BETWEEN MAKER AND PAYEE, AND THE
PLEDGE AND SECURITY AGREEMENT (THE "PLEDGE AND SECURITY AGREEMENT") BY AND
AMONG MAKER, XXXXX AND CERTAIN OTHER PARTIES, EACH DATED AS OF THE DATE HEREOF.
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ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF MAKER OR PAYEE WILL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF VIRGINIA OR IN
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT HEREOF AGAINST MAKER MAY BE BROUGHT,
AT PAYEE'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE PAYEE MAY OTHERWISE
OBTAIN PERSONAL JURISDICTION OVER MAKER. MAKER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF VIRGINIA AND OF THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA FOR THE
PURPOSE OF ANY SUCH LITIGATION ASSET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. MAKER
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
VIRGINIA. MAKER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT MAKER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, MAKER HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS SECURED OBLIGATIONS UNDER THIS NOTE.
This Note is the "Shamrock Note" referred to in, and arises out of,
the Stock Purchase Agreement, and the timely repayment hereof in accordance with
the terms hereof is secured by the Pledge and Security Agreement. Upon and at
any time after the occurrence of any breach or default hereunder or under the
Stock Purchase Agreement or the Pledge and Security Agreement, at the election
of Payee, Xxxxx may declare the entire unpaid balance of all indebtedness
hereunder (including, principal, interest and fees) to be immediately due and
payable. Payee is entitled to the rights and benefits of the Stock Purchase
Agreement and the Pledge and Security Agreement.
THE RIGHTS OF PAYEE TO RECEIVE PAYMENT PURSUANT TO THIS NOTE ARE
SUBJECT TO THE RIGHTS OF MAKER TO SET OFF AGAINST ANY AMOUNTS THEN DUE AND
PAYABLE HEREUNDER ANY OTHER AMOUNTS THEN DUE AND PAYABLE BY MAKER TO PAYEE (OR
TO XXXXXXX X. XXXXXX OR XXXXXXX X. XXXXXXXXX, PARTNERS OF MAKER, TO THE EXTENT
THAT PAYEE SHALL HAVE PURCHASED SUCH DEBT FROM THEM), PROVIDED THAT PAYEE SHALL
HAVE FIRST GIVEN MAKER WRITTEN NOTICE OF ITS INTENT TO EXERCISE SUCH SET OFF
RIGHT.
Xxxxx, its successors or assigns, may assign at any time all or a part
of its rights hereunder without the consent of Maker.
This Note shall be governed by and construed under the laws of the
State of Virginia without giving effect to conflicts of laws principles.
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IN WITNESS WHEREOF, Maker has caused this Note to be executed in its
name and on its behalf on the day and year first written above.
WITNESS/ATTEST: SHAMROCK INVESTMENTS, Maker
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: General Partner Title: Managing General Partner
BEING ALL OF THE GENERAL PARTNERS OF SHAMROCK INVESTMENTS, A CALIFORNIA GENERAL
PARTNERSHIP ("MAKER"), EACH INDIVIDUAL BELOW HEREBY RATIFIES, CONFIRMS AND
APPROVES THE INDEBTEDNESS REPRESENTED HEREBY AND HEREBY REPRESENTS AND WARRANTS
TO PHP HEALTHCARE CORPORATION THAT ALL NECESSARY ACTIONS HAVE BEEN TAKEN AND
APPROVALS RECEIVED IN ORDER FOR THE INDEBTEDNESS REPRESENTED BY THIS NOTE TO BE
THE LEGAL, VALID AND ENFORCEABLE INDEBTEDNESS OF THE MAKER.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, General Partner
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, General Partner
