[DESCRIPTION] MATERIAL CONTRACT
EX-10.55 Copy of Promissory Note in the amount of
$2,099,083.00 dated February 19, 1997,
between Primergy, Inc. and Registrant
PROMISSORY NOTE
$2,099,083.00 February 19, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED and intending to be legally bound, the
undersigned, PRIMERGY, INC., a New York corporation (the "Maker"),
having a principal place of business at 00 Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000, hereby unconditionally and irrevocably
promises to pay to the order of THE WELLCARE MANAGEMENT GROUP,
INC., a New York corporation (the "Payee"), having its principal
office at Park West/Xxxxxx Avenue Extension, Kingston, New York
12401, or at such other location as the Payee may designate to the
Maker from time to time, the principal sum of TWO MILLION NINETY-NINE THOUSAND
EIGHTY-THREE DOLLARS ($2,099,083.00) (the "Face
Amount"), with interest as set forth below, in lawful money of the
United States of America, in immediately available funds, without
set-off, deduction, defense or counterclaim of any kind
whatsoever, upon the following terms and conditions:
1. Unless an Event of Default (as defined in Section 6
hereof) occurs, interest on the unpaid Face Amount shall accrue
for the period (the "Initial Accrual Period") commencing from (and
including) February 19, 1997 and ending on the date that this
Promissory Note is repaid in full, at the variable per annum rate
equal to the sum of: (x) the Prime Rate of interest of The Chase
Manhattan Bank, N.A. (the "Reference Bank") in effect from time to
time (that rate of interest periodically established by the
Reference Bank and designated as the Reference Bank's "Prime
Rate", which rate may not be the lowest rate of interest charged
by the Reference Bank), plus (y) two percent (2%), which variable
per annum rate shall change when and as such Prime Rate shall
change (the "Base Rate"). All interest under this Promissory Note
shall be calculated on the basis of a year of three hundred sixty
(360) days for the actual number of days elapsed. Upon an Event
of Default, the Initial Accrual Period shall automatically and
immediately terminate, unless and until an Event of Default is
cured to Payee's satisfaction in Payee's sole discretion;
provided, however, that in no event shall the Initial Accrual
Period continue beyond February 18, 2002.
2. Subject to the acceleration of the maturity of this
Promissory Note in accordance with Section 6 hereof, the Maker
shall repay this Promissory Note as follows:
a. until the earlier of an Event of Default
or the Trigger Date (as defined herein), the Maker shall pay the
interest accrued on the unpaid Face Amount for the Initial Accrual
Period in accordance with Section 1 hereof, in consecutive monthly
installments, payable on the first day of each applicable month,
commencing March 1, 1997; and
b. commencing with the Trigger Date, the
Maker shall repay the amount (the "Base Amount") equal to the sum
of: (x) the unpaid Face Amount, plus (y) the interest accrued
thereon for the Initial Accrual Period in accordance with Section
1 hereof, in thirty-six (36) equal and consecutive monthly
installments, payable on the first day of each applicable month,
commencing with the first day of the month following the Trigger
Date. Interest on the unpaid portion of the Base Amount from time
to time outstanding shall accrue and be payable by the Maker with
each installment of the Base Amount, at the Base Rate.
For purposes of this Promissory Note, the "Trigger Date" shall
mean the first to occur of: (i) March 15, 1997, if Maker has not
executed the promissory note payable to the order of FPA Medical
Management, Inc. ("FPA"), under which FPA agrees to loan up to
$4,000,000.00 to Maker, which note is in the form attached hereto
as Appendix A (the "FPA Note"), or FPA and Maker have not executed
the Option Agreement in the form appended hereto as Appendix B
(the "Option Agreement") by such date; (ii) the date on which FPA
notifies Maker that it relinquishes any and all rights to the
option to merge with Maker under the Option Agreement (such notice
to be immediately communicated to Payee); (iii) the date two years
after the date of execution and delivery of the Option Agreement;
or (iv) the date on which a determination by the Payee is made
that a Material Default has occurred ("Material Default" means any
default (subject to compliance with any applicable notice or
opportunity to cure provisions) permitting the Payee or its
subsidiaries to terminate any contract between the Payee or any of
its subsidiaries and Maker).
3. Following the expiration of the Initial Accrual Period
or after the occurrence and during the continuance of an Event of
Default, interest on the unpaid Base Amount outstanding from time
to time shall bear interest from (and including) the date of
default (or expiration of the Initial Accrual Period) at the
variable per annum rate (the "Default Rate") equal to the sum of:
(x) the Prime Rate, plus (y) four percent (4%), which Default Rate
shall change when and as the Prime Rate shall change. Such
interest shall from time to time be payable on demand, in arrears.
Interest shall continue to accrue on the unpaid Base Amount at the
Default Rate notwithstanding any demand for payment, acceleration
and/or the entry of judgment for such sums.
4. Following the expiration of the Initial Accrual Period
or after the occurrence and during the continuance of an Event of
Default, the amount (the "Default Amount") of the unpaid Base
Amount shall bear interest from (and including) the date of
default (or expiration of the Initial Accrual Period) at the
Default Rate, which interest (the "Default Interest") shall from
time to time be payable on demand, in arrears. Interest shall
continue to accrue on the unpaid Default Amount at the Default
Rate notwithstanding any demand for payment, acceleration and/or
the entry of judgment for such sums. Any payments made by the
Maker following any default under this Promissory Note shall be
applied first to Default Interest due and owing, then to the costs
and expenses incurred by the Payee under Section 8 hereof and
lastly to the Base Amount or the Default Amount then outstanding,
as the case may be.
5. During the Initial Accrual Period, Maker may prepay
the unpaid Face Amount in whole or in part, together with the
payment of all interest accrued on the amount prepaid, but without
premium or penalty.
6. In the event (each, an "Event of Default") of: (a) any
amendment to the Option Agreement or the FPA Note, to which the
Payee has not granted its prior written consent; (b) a change in
control, merger or sale of substantially all of the assets of the
Maker (where "change in control" shall mean possession, directly
or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or
otherwise)), (c) the failure of the Maker to perform any term,
covenant or condition contained herein including, but not limited
to, any payment of the Base Amount or of interest hereunder when
due, (d) the failure of the Maker or any affiliate thereof to pay
when due any other indebtedness of the Maker to the Payee or to
WellCare of New York, Inc., a New York corporation ("WCNY"), or to
any of Payee's or WCNY's subsidiaries or affiliates, (e) the
failure of the Maker to pay when due any indebtedness of such
Maker to any third party in an amount equal to or exceeding
$250,000.00, (f) the commencement of any proceeding under any
bankruptcy or insolvency laws (but only, in the case of an
involuntary proceeding, if the proceeding has not been dismissed
or stayed within sixty (60) days of its commencement) by or
against the Maker, (g) the appointment of a receiver, trustee or
liquidator of any part of the property of the Maker, (h) a general
assignment for the benefit of creditors of the Maker, (i) the
Maker being unable, or admitting in writing its inability, to pay
its debts as they mature, or (j) Maker shall have prepaid
principal under the FPA Note on a basis other than a pro rata
basis with the prepayment of principal due Payee or any of its
affiliates under this Promissory Note or any other evidence of
indebtedness in proportion to the outstanding principal
indebtedness due under the FPA Note, on the one hand, and this
Promissory Note and all other indebtedness payable to the Payee
and its affiliates, on the other hand, then the Maker shall be in
default hereunder, and thereupon the entire balance outstanding
hereunder shall be immediately due and payable. The Payee shall
thereupon have the option at any time and from time to time to
exercise all rights and remedies set forth herein or otherwise
available to the Payee at law or in equity.
7. The Maker hereby waives diligence, presentment,
protest, demand for payment and notice (including, without
limitation, any and all notices of default arising under Section 6
hereof) of any kind whatsoever.
8. The Maker agrees to pay or reimburse the Payee for all
costs, expenses or losses incurred by the Payee in connection with
the collection or enforcement of the provisions hereof or of its
rights in connection with this Promissory Note (whether or not any
formal action or proceeding is commenced), including, but not
limited to, the entire amount of legal or collection fees and
disbursements incurred by the Payee.
9. No course of dealing between the Maker and the Payee
or any failure, delay or omission on the part of the Payee in
exercising any right hereunder shall operate or be construed as a
waiver of such right or any other right hereunder at any other
time or times. The waiver by the Payee of a breach or default of
any provision of this Promissory Note shall not operate or be
construed as a waiver of any subsequent breach or default thereof
or any other breach or default hereunder at any other time or
times.
10. This Promissory Note supersedes any and all other
agreements that may have been enforced between the Maker and the
Payee as to the subject matter hereof.
11. Maker shall provide Payee with copies of Maker's
financial statements and Federal and State Tax Returns on an
annual basis within one hundred twenty (120) days of Maker's
fiscal year end.
12. This Promissory Note and the rights of the parties
hereto shall be governed by and construed in accordance with the
internal laws (as opposed to the conflicts of law provisions) of
the State of New York. The Maker hereby irrevocably consents to
the nonexclusive jurisdiction of the Courts of the State of New
York or any Federal Court in such State in connection with any
action or proceeding arising out of or related to this Promissory
Note. In any such litigation, the Maker waives personal service
of any summons, complaint or other process and agrees that service
of any summons, complaint or other process may be made by
certified or registered mail to it, at the address provided
herein. THE MAKER WAIVES TRIAL BY JURY IN ANY LITIGATION ARISING
OUT OF OR RELATED TO THIS PROMISSORY NOTE.
13. This Promissory Note shall be binding upon and inure
to the benefit of the Maker and its successors and to the benefit
of the Payee and its successors and assigns. The rights and
obligations of the Maker under this Promissory Note shall not be
assigned or delegated without the prior written consent of the
Payee, and any purported assignment or delegation without such
consent shall be void.
14. The provisions of this Promissory Note are severable
and the invalidity or unenforceability of any provision shall not
alter or impair the remaining provisions of this Promissory Note.
PRIMERGY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, M.D.
ATTEST:
/s/ Xxxxxxx Xxxxx
(Corporate Seal)
