Exhibit 10.55
NOTE AMENDMENT AGREEMENT
This Agreement is made and entered into freely and voluntarily and is
effective as of July 1, 1995, by and between Xxxxxx X. XxXxxxxxx (hereinafter
referred to as "XxXxxxxxx") and The Antigua Group, Inc., a Nevada corporation
which is the successor in interest to a Delaware corporation having the same
name (hereinafter referred to as "Antigua").
RECITALS
X. XxXxxxxxx and Antigua are the parties to a Stock Repurchase
Agreement dated as of January 1, 1993 (the "1993 Agreement"), whereby Antigua
agreed to purchase certain shares of Antigua stock from XxXxxxxxx.
B. As part of the purchase price, Antigua issued to XxXxxxxxx Antigua's
non-negotiable promissory note, dated January 1, 1993, in the principal amount
of $334,619 (the "1993 Note").
C. The parties now wish to modify the terms of the 1993 Note.
COVENANTS
In Consideration of the acts, payments, covenants and mutual agreements
herein described and agreed to be performed, and for other valuable
consideration, the amount and sufficiency of which is hereby acknowledged,
XxXxxxxxx and Antigua agree as follows:
1. The New Note. The parties agree that the 1993 Note is hereby
cancelled and replaced for all purposes by the new note (the "1995 Note"), which
is attached to this Agreement as Exhibit A and incorporated herein by this
reference.
2. Entire Agreement. This Agreement contains the entire understanding
of the parties concerning its subject matter and supersedes all prior and
contemporaneous oral and written negotiations, promises, commitments and
agreements.
3. Affirmation of the 1993 Agreement. Except as specifically provided
in this Agreement, the terms and provisions of the 1993 Agreement are hereby
reaffirmed by the parties in accordance with their terms.
4. Parties Bound and Assignability.
a. This Agreement shall be binding upon the parties hereto and
their respective representatives, agents, successors and assigns.
b. Neither this Agreement nor any rights hereunder shall be
assigned, pledged, hypothecated or otherwise transferred by either party hereto
without the written consent of the other party.
5. Governing Law. This Agreement has been negotiated and entered into
in the State of Arizona and shall be governed by, construed and enforced in
accordance with the laws of the State of Arizona. Venue for any action
concerning this Agreement shall lie only in the state or federal courts in
Maricopa County, Arizona.
6. Continuing Cooperation. Each party to this Agreement shall be
obligated hereunder to perform such other and further acts, including without
limitation the execution of any documents or instruments which are reasonable
and may be necessary or convenient in carrying out the purpose and intent of
this Agreement.
/s/ Xxxxxx X. XxXxxxxxx
Xxxxxx X. XxXxxxxxx
THE ANTIGUA GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
Its: Chairman of the Board/CEO
EXHIBIT A
THE ANTIGUA GROUP, INC.
SECOND AMENDED AND RESTATED
NON-NEGOTIABLE NOTE
Dated: January 1, 1993 $334,619.00
Scottsdale, Arizona
THE ANTIGUA GROUP, INC., a Nevada corporation ("Maker"), for value
received, hereby promises to pay to the order of Xxxxxx X. XxXxxxxxx ("Payee"),
at Scottsdale, Arizona, or such other place as Payee may designate from time to
time in writing, the principal sum of $334,619.00, together with interest
accrued as provided below, on or before June 30, 1998 (the "Maturity Date").
Simple interest, which shall be payable monthly in arrears on or before
the first day of each month, shall accrue on the unpaid balance of the principal
outstanding hereunder from time to time commencing on January 1, 1993, through
and including the Maturity Date, at the rate of 6% per year. All unpaid
principal amounts and all accrued but unpaid interest shall be due and payable
on July 1, 1998. Principal payments in the amount of $83,654.75 shall be made on
each of June 30, 1994, July 1, 1996; July 1, 1997; and July 1, 1998.
If the Maturity Date or any due date is not a business day, payment
hereunder shall be made on the next succeeding business day. Maker hereby
expressly waives any presentment, demand, protest or notice in connection with
this Note now, or hereafter, required by applicable law.
Maker hereby agrees to pay (i) all costs, expenses and fees (including
reasonable fees and expenses of counsel) incurred by Payee for enforcement of
this Note if any Event of Default occurs hereunder, and (ii) any stamp or
documentary tax or any similar charge imposed in connection with the execution,
delivery, amendment, performance or enforcement of this Note; and each of (i)
and (ii) above shall be deemed obligations due and payable under this Note.
Stock Repurchase Agreement
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This Note is a non-negotiable promissory note (herein called the
"Note"), limited in principal amount to $334,619.00 and issued in conjunction
with a Stock Repurchase Agreement dated the same date as this Note (herein
called the "Stock Repurchase Agreement"), between Maker and Payee. This Note is
governed by the provisions of the Stock Repurchase Agreement and reference is
made to the Stock Repurchase Agreement for certain rights, limitations of
rights, obligations and duties of Maker and Payee.
Repayments
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Maker shall have the right, at any time and from time to time, to repay
the outstanding principal amount of this Note or any portion thereof without
penalty or premium and without paying any accrued interest thereon except (i) if
the outstanding principal amount of this Note is reduced to zero by any such
repayment Maker shall therewith pay all accrued interest and (ii) on the
Maturity Date Maker shall pay all accrued interest (as herein provided).
Defaults
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In case an Event of Default (as defined herein) shall have occurred and
be continuing, this Note (together with all interest accrued hereon) may be
declared, by Payee giving notice to Maker, and upon such declaration shall
become, immediately due and payable.
The following shall be Events of Default.
a. Payment of Principal and Interest. Maker shall fail for 10
calendar days after receiving notice thereof, to pay, after it
becomes due, any installment of principal or interest required
hereunder.
b. Performance of Covenants and Agreements. Maker shall be in
default in the performance of any covenant or agreement
contained in this Note or the Stock Repurchase Agreement for
30 calendar days after receiving notice thereof.
Miscellaneous
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1. Assignment or Transfer. Neither this Note nor the rights, obligations,
duties, liabilities or privileges arising here-under may be assigned or
transferred by Maker or Payee to any person without the prior written
consent of the other, and any assignment or transfer without such
consent shall be void.
2. Governing Law. This Note shall be governed by and construed and
enforced under the laws of the State of Arizona.
3. Notices. All notices, demands and requests required or permitted by
this Agreement shall be in writing and, except as otherwise provided
herein, shall be deemed to have been given for all purposes (i) upon
personal delivery, (ii) one day after being sent, when sent by
professional overnight courier service from and to locations within the
continental United States, or (iii) five days after posting when sent
by United States registered or certified mail, with postage paid; if
directed to the person or entity to which notice is to be given at his
or its address set forth in this section or at any other address such
person or entity has designated by notice.
Address for Maker:
The Antigua Group
0000 Xxxxx 00xx Xxx
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Address for Payee:
Xxxxxx X. XxXxxxxxx
00000 Xxxxx 000xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
4. Severability. If one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision hereof and this Note shall be construed as
if such invalid, illegal or unenforceable provision had never been
contained herein.
IN WITNESS WHEREOF, Maker has caused this Note to be executed in its
corporate name as of the date first above written.
THE ANTIGUA GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Chairman of the Board/CEO
