Contract
EXHIBIT
10.18
THIS NOTE
WAS ORIGINALLY ISSUED ON MAY 13, 2010, AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED UNLESS REGISTERED UNDER THE
ACT AND ALL APPLICABLE STATE SECURITIES LAWS OR UNLESS THE HOLDER OF THIS NOTE
DELIVERS TO THE ISSUER HEREOF AN OPINION OF COUNSEL (WHICH COUNSEL AND OPINION
SHALL BE REASONABLY SATISFACTORY TO THE ISSUER HEREOF) TO THE EFFECT THAT AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE AT THE TIME OF SUCH
SALE OR TRANSFER. THE TRANSFER OF THIS NOTE IS ALSO SUBJECT TO
SIGNIFICANT ADDITIONAL RESTRICTIONS ON TRANSFER AS MORE FULLY DESCRIBED
HEREIN.
PROMISSORY
NOTE
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$1,173,473
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May
13, 2010
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FOR VALUE
RECEIVED, SSGI, Inc., a Florida corporation (“Maker”), hereby
promises to pay to the order of Xxxxx X. Xxxxx, Xx., an individual resident of
the State of Florida (“Payee”), the
principal sum of One Million One Hundred Seventy-three Thousand Four Hundred
Seventy-three Dollars ($1,173,473.00), together with interest thereon at the
rate of four percent (4%) per annum from the date hereof, all in accordance with
the provisions of this Promissory Note (this “Note”). Capitalized
terms used but not defined herein have the meanings given to such terms in that
certain Stock Purchase Agreement, dated as of May 13, 2010, by and among Maker,
Payee and B & M Construction Co., Inc. (the “Purchase
Agreement”).
1) Principal and Interest
Payment. Maker shall make payment to Payee of the principal
amount of this Note and all accrued interest hereon in forty-eight (48) equal
(except as otherwise provided in the last sentence of this Section 1) monthly
installments (amortized over forty-eight (48) months), commencing on the 30th day
following the Closing Date and continuing thereafter on the same day of each
successive month thereafter. Each such monthly installment shall be
applied first to accrued but unpaid interest and then to the reduction of the
outstanding principal balance. Notwithstanding the foregoing, if the
principal amount of this Note is increased or decreased in accordance with
Section 1.4 or 8.2(c) of the Purchase Agreement, then the payments remaining
thereafter shall be appropriately recomputed to account for the change in
amortization resulting from such increase or decrease.
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2) Optional
Prepayments. This Note may be prepaid by Maker in whole or in
part at any time or from time to time without penalty or premium. Any
partial prepayment (together with any set-off against this Note as contemplated
below) shall be applied first against accrued and unpaid interest and then
against the outstanding principal amount.
3) Manner of
Payment. Payments of principal and interest on this Note shall
be made in lawful money of the United States of America by wire transfer of
immediately available funds to any account as Payee may designate from time to
time in writing.
4) Setoff/Increase. Notwithstanding
the foregoing, the outstanding principal amount of this Note and any accrued but
unpaid interest thereon is subject to setoff (or increase) pursuant to and in
accordance with Sections 1.4 and 8.2(c) of the Purchase Agreement (which
sections are incorporated herein in their entirety by reference and made a part
hereof). In the event of any such setoff (or increase), Maker shall
deliver to Payee a notice stating the amount of (and the basis for) such setoff
(or increase). Any reduction in the outstanding principal amount of
this Note and/or interest thereon in connection with any such setoff in
accordance with Section 1.4 or 8.2(c) of the Purchase Agreement shall be
permanent and such setoff amounts shall no longer be deemed
outstanding.
5) Events of
Default. For purposes of this Note, an “Event of Default”
shall only be deemed to have occurred if:
(a) Maker
fails to pay when due and payable (whether at maturity or
otherwise) the full amount of principal or interest on this Note, and
such failure is not cured within 5 business days after the occurrence thereof;
or
(b) an
order, judgment or decree is entered adjudicating Maker bankrupt or insolvent;
or any order for relief with respect to Maker is entered under the Federal
Bankruptcy Code; or Maker petitions or applies to any tribunal for the
appointment of a custodian, trustee, receiver or liquidator for all or
substantially all of the assets of Maker, or Maker commences any proceeding
relating to Maker under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction; or any
such petition or application is filed, or any such proceeding is commenced,
against Maker and (i) Maker indicates in writing its
approval thereof, consent thereto or acquiescence therein or (ii) such
petition, application or proceeding is not dismissed within 90 days;
or
(c) Maker
fails to comply with any of its obligations or covenants in this Note (other
than payment obligations) and such failure is not cured within 15 days after
receiving written notice from the holder of this Note specifying the particulars
of such failure.
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If an
Event of Default has occurred and is continuing, Payee may declare all or any
portion of the outstanding principal amount of this Note (together with all
accrued and unpaid interest thereon) to be immediately due and payable and may
(i) demand immediate payment of all or any portion of the outstanding principal
amount of this Note (together with all accrued and unpaid interest thereon) and
in connection therewith institute legal action against Maker for the collection
thereof, and/or (ii) exercise any and all other remedies available to Payee
under applicable law. Maker shall pay to the holder of this Note all
reasonable costs and expenses incurred by it in connection with the collection
or enforcement of this Note following the occurrence of an Event of Default,
including, but not limited to, the reasonable fees and expenses of such holder’s
attorneys for all services rendered in connection therewith. The
remedies specifically described in this paragraph shall be the only remedies
available to the holder of this Note upon the occurrence of an Event of
Default.
6) Transfer
Restrictions. Neither this Note nor any interest herein may be sold,
assigned, transferred, pledged, hypothecated or otherwise disposed of (whether
with or without consideration and whether voluntary or involuntary or by
operation of law, including in connection with any voluntary or involuntary
dissolution, liquidation or winding up of Payee) without the prior written
consent of Maker. Any such attempted transfer of this Note without
Maker’s consent shall be null and void. Notwithstanding the
foregoing, upon the death of Payee this Note and any interest herein may be
assigned to Payee’s estate without having to obtain the prior written consent of
Maker.
7)
Miscellaneous.
(a)
If the date of any payment required under this Note shall be a Saturday, Sunday
or a bank holiday, such payment shall be made on the first business day
following such date.
(b) Presentment
for payment, demand, notice of nonpayment, notice of protest and protest of this
Note are hereby waived.
(c) THIS
NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
FLORIDA AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN SAID
STATE. Each of Maker and Payee (i) hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of Florida and the courts of the State of Florida located in Palm Beach
County, Florida, for the purposes of any suit, action or proceeding arising out
of or relating to this Note, and (ii) hereby waives, and agrees not to assert in
any such suit, action or proceeding, any claim that he or it is not personally
subject to the jurisdiction of any such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper.
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IN
WITNESS WHEREOF, Maker has caused this Note to be executed and delivered as of
the date first above written.
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By:
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/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx
X. Xxxxxxxxx, Chief
Executive Officer
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