21
EXHIBIT E
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED PURSUANT TO SUCH ACT
OR UNLESS IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
ELX LIMITED PARTNERSHIP
PROMISSORY NOTE
---------------
$909,150 December 30, 1996
FOR VALUE RECEIVED, the undersigned, ELX Limited Partnership, a
Delaware limited partnership ("Payor"), hereby unconditionally promises to pay
to ELXSI Corporation, a Delaware corporation ("Payee"), the principal sum of
NINE HUNDRED NINE THOUSAND ONE HUNDRED FIFTY 00/100 DOLLARS ($909,150) on the
third anniversary of the date hereof (the "Maturity Date"), or such earlier date
as may otherwise be provided for herein, plus interest at the rate and on the
date provided for herein.
This Promissory Note (this "Note") has been issued to evidence and set
forth the terms of a $909,150 loan (the "Loan") made on December 30, 1996 by the
Payee to the Payor.
Section 1. Interest, Payments and Prepayments.
-----------------------------------
1.1 The unpaid principal balance of this Note shall bear interest at
a rate per annum equal to (i) the rate of interest per annum charged on the
funds borrowed by the Payee (or its subsidiary) in order to make the Loan
(including any refinancing, refunding or renewal of such borrowing) (the "Cost
of Funds") plus (ii) one half percent (0.5%). The interest rate payable
hereunder shall change automatically on the effective date of any change in
the Cost of Funds.
1.2 All interest hereunder shall be due payable on the Maturity Date
(or such earlier date as may otherwise be provided for herein).
1.3 Payments and prepayments of principal and interest on this Note
shall be made, at the option of Payor:
(a) in lawful money of the United States of America by wire or
bank transfer, or as otherwise designated by Payee, in immediately available
funds to an account designated in writing by Xxxxx;
22
(b) by surrender of indebtedness of the Payee (other than the
indebtedness hereunder) having an outstanding principal amount equal to the
amount of the payment or prepayment then due;
(c) by surrender of equity securities of the Payee with a value
equal to the amount of the payment or prepayment then due;
(d) by surrender of warrants of the Payee with a value equal to
the amount of the payment or prepayment then due; or
(e) by any combination of the foregoing.
1.4 In the event that a payment or prepayment under this Note is made,
in whole or in part, in the manner set forth in Section 1.3(c) above, the value
of the applicable equity securities shall be an amount equal to the product of:
(A) the number of shares of such equity securities being surrendered for such
payment or prepayment; and (B)(i) the average of the daily market prices of one
shares of such equity security for the thirty (30) consecutive trading days
preceding the date of such surrender or (ii) if such equity security is a
preferred stock with no public trading market, the liquidation preference of
each share of such equity security. In the event that a payment or prepayment
under this Note is made, in whole or in part, in the manner set forth in Section
1.3(d) above, the value of the applicable warrants shall be an amount equal to
the product of: (A) the number of such warrants being surrendered for such
payment or prepayment; and (B) the difference between (i) the value of each
share or other unit of the securities for which such warrants are exercisable,
determined in the manner set forth above, and (ii) the exercise price per share
or other unit of such warrants.
1.5 If the date on which any payment is required to be made pursuant
to the provisions of this Note occurs on a Saturday, Sunday or legal holiday
observed in the State of New York, such payment shall be due and payable on the
immediately succeeding date which is not a Saturday, Sunday or legal holiday so
observed.
1.6 The principal and interest on this Note may be voluntarily
prepaid, in whole or in part, at any time and from time to time, provided that
any principal amount so prepaid shall be accompanied by payment of the accrued
but unpaid interest thereon. Prepayments shall be applied first to interest and
then to principal.
1.7 Nothing contained in this Note shall be deemed to establish or
require the payment of a rate of interest in excess of the maximum rate legally
enforceable. If the rate of interest called for under this Note at any time
exceeds the maximum rate legally enforceable, or if any charges payable pursuant
hereto are, according to applicable laws, construed to be interest which has the
effect of causing the interest hereunder to exceed the maximum rate legally
enforceable, the rate of interest and/or charges required to be paid hereunder
shall be automatically reduced so that the interest hereunder does not exceed
the maximum rate legally enforceable. If such interest rate and/or charges are
so reduced and thereafter the maximum rate legally enforceable is increased, the
rate of interest and/or fees required to be paid hereunder
23
shall be automatically increased to the maximum rate legally enforceable, which
in no event shall exceed the rate otherwise provided for in this Note.
Section 2. Events of Default.
------------------
In the event that:
2.1 Payor defaults in making any payment required to be made under
this Note; or
2.2 Payor fails to pay any principal of or interest on any
indebtedness for borrowed money, or any guarantee thereof, beyond the period of
grace, if any, provided with respect thereto, or Payor defaults in the
observance or performance of any other term, covenant, agreement, condition,
undertaking or provision contained in any agreement or instrument evidencing or
securing or related to any such indebtedness for borrowed money or guarantee, if
the effect thereof is to cause, or permit the holder or holders thereof (or a
trustee or trustees on behalf of such holder or holders) to cause, and such
holder or holders have caused, such indebtedness for money borrowed or guarantee
to become due prior to its stated maturity; provided that the aggregate amount
of all indebtedness affected as aforesaid shall equal or exceed $10,000; or
2.3 (i) Payor shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part of its
assets, or shall make a formal or informal general assignment for the benefit of
its creditors; or (ii) there shall be commenced against Payor any case,
proceeding, or other action of a nature referred to in clause (i) above which
(A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
90 days; or (iii) Payor takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i) or (ii) above; or (iv) Payor shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due;
then, upon the occurrence and during the continuance of any such event (an
"Event of Default"), Payee (unless there shall have occurred an Event of Default
under Section 2.3, in which case the unpaid balance of this Note shall
automatically become due and payable) may, by written notice to Payor, declare
this Note due and payable, whereupon the same shall become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived.
Section 3. Miscellaneous.
--------------
3.1 All notices, requests, demands or other communications to or upon
Payor or Payee shall be deemed to have been given or made when deposited in the
24
mails, postage prepaid, addressed to Payor at 0000 Xxxxxxxx Xxxx, Xxxxx X-0,
Xxxxxxx, Xxxxxxx 00000, and to Payee at the same address. No other method of
giving notice is hereby precluded.
3.2 No failure or delay on the part of the Payee in exercising any
right, power or privilege hereunder, and no course of dealing between Payor and
Payee shall operate as a waiver thereof nor shall any single or partial exercise
of any right, power or privilege hereunder preclude the simultaneous or later
exercise of any other right, power or privilege. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
which the Payee would otherwise have. No notice to or demand on Payor in any
case shall entitle the Payee to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the Payee to take
any other or further action in any circumstances without notice or demand.
3.3 The Payor agrees to pay and save the Payee harmless against
liability for the payment of all out-of-pocket expenses arising in connection
with the enforcement of this Note, including without limitation the reasonable
fees and expenses of counsel selected by the Payee.
3.4 Upon receipt of evidence reasonably satisfactory to Payor of the
loss, theft, destruction or mutilation of this Note and of a letter of indemnity
reasonably satisfactory to Payor from the Payee, and upon reimbursement to Payor
of all reasonable expenses incident thereto, and upon surrender or cancellation
of this Note, if mutilated, Payor will make and deliver a new Note of like tenor
in lieu of such lost, stolen, destroyed or mutilated Note.
3.5 This Note shall be binding upon Payor and Xxxxx and their
respective successors and permitted assigns. This Note, and the rights and
obligations hereunder, may not be assigned or delegated by Xxxxx without the
prior written consent of Payor or by Payor without the prior written consent of
Xxxxx.
3.6 This Note shall be interpreted, construed and enforced in
accordance with the laws of the State of New York.
ELX LIMITED PARTNERSHIP
By:________________________
Xxxxxxxxx X. Xxxxxx
General Partner
