EXHIBIT "A"
PROMISSORY NOTE
August 25, 1994
FOR VALUE RECEIVED, THE EUROPA CRUISES CORPORATION EMPLOYEE STOCK
OWNERSHIP PLAN, TRUST AGREEMENT (the "Maker") promises to pay to the order of
Europa Cruises Corporation (the "Payee") the principal sum of Three Million One
Hundred Eighty Thousand Dollars ($3,180,000) plus interest thereon at the rate
of eight percent (8.0%) per annum. This promissory note is hereinafter referred
to as the "Note".
SECTION 1. NATURE OF NOTE. This Note is issued pursuant to that certain
Loan and Security Agreement of even date herewith (the "Loan and Security
Agreement") by and among the Maker and the Payee. All capitalized terms used in
this Note which are not otherwise defined herein shall have the meanings
assigned to them in the Loan and Security Agreement.
SECTION 2. PRINCIPAL AND INTEREST PAYMENTS; MATURITY DATE. The Note
shall be paid in ten equal annual installments of principal and accrued
interest. The first installment shall be due on August 24, 1995 and each annual
installment thereafter shall be due on each August 24 thereafter, through and
including August 24, 2004 (the "Maturity Date"). Should any date on which a
payment for this Note is due fall on a Saturday, Sunday or holiday, payment
shall be due on the next business day.
SECTION 4. PAYMENTS; PREPAYMENTS.
(a) Payments. All payments hereunder (including any payment or
prepayment of interest or principal) shall be made in lawful money of the United
States of America to the Payee at the address of the Payee as set forth in
Section 6. The Payee shall not have any right to the assets of the Maker other
than the assets that the Maker may legally use to make payments pursuant to this
Note Section 4975 (d)(3) (and the regulations issued thereunder) of the Internal
Revenue Code of 1986, as amended.
(b) Prepayment. This Note may be prepaid, in whole or in part,
at any time without penalty. Any partial prepayments shall be applied to the
next succeeding interest installment due.
SECTION 5. EVENT OF DEFAULT; REMEDIES.
(a) Default.
The Maker's failure to pay any installment under this Note
when the same shall become due and the continuation thereafter of such failure
for more than 20 days after the Payee gives written notice thereof to the Maker
shall constitute an Event at Default hereunder.
(b) No Acceleration. There shall be no acceleration of principal
and/or interest under any circumstances under this Note.
(c) Non-Recourse. This Note shall be without recourse against
the Maker except as otherwise permitted under Section 4975(d)(3) of the
Internal Revenue Code of 1986, as amended, and the regulations issued
thereunder.
(d) Costs of Enforcement. If an Event of Default occurs, whether
or not the Payee pursues any of the remedies set forth in this Section, the
Maker shall be responsible for and shall pay on demand all costs and expenses
incurred by the Payee in protecting or enforcing its rights hereunder, including
reasonable attorneys' fees.
SECTION 6. NOTICE. Any notice or other communication required or
permitted to be given hereunder shall be in writing, and shall be delivered to
the parties at the addresses set forth below (or to such other addresses as the
parties may specify by due notice to the other):
if to the Payee: Europa Cruises Corporation
000 000xx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
if to the Maker: Europa Cruises Corporation Employee Stock
Ownership Trust
c/o Xxxxxx X. Xxxxx, Trustee
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Notices or other communications given by certified mail, return receipt
requested, postage prepaid, shall be deemed given on the day of mailing. Notices
or other communications sent in any other manner shall be given only when
actually received.
SECTION 7. WAIVER OF JURY TRIAL. The Maker hereby (i) covenants and
agrees not to elect a trial by jury or any issue triable of right by a jury, and
(ii) waives any right to trial by
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jury fully to the extent that any such right shall now or hereafter exist.
SECTION 8. MISCELLANEOUS. No failure or delay by the Payee to insist
upon the strict performance of any one or more provisions of this Note, the Loan
and Security Agreement, or to exercise any right, power or remedy consequent
upon a breach thereof or default hereunder shall constitute a waiver thereof, or
preclude the Payee from exercising any such right, power or remedy. The Maker
and other parties liable hereon in any capacity, whether an endorser, surety,
guarantor or otherwise, (i) waives its homestead exemption, (ii) waives demand,
presentment for payment, protest, notice of dishonor and notice of protest and
(iii) agrees that the holder hereof, at any time or times, without notice to it
or its consent, may grant extensions of time, without limit to the number or the
aggregate period of such extensions, for the payment of any interest due hereon.
This Note shall inure to the benefit of and be binding upon the parties and
their respective successors and assigns. The invalidity, illegality or
unenforceability of any provision of this Note shall not affect or impair the
validity, legality or enforceability of any other provision. This Note shall be
governed by the laws of the State of Florida without giving effect to conflict
of laws provisions.
IN WITNESS WHEREOF, the Maker has caused its name to be signed under
seal as of the day and year first written above.
MAKER:
EUROPA CRUISES CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN, TRUST AGREEMENT
/s/ XXXXXXX X. XXXXXX /s/ XXXXXXX X. XXXXXX
------------------------------- ------------------------------
Xxxxxxx X. Xxxxxx, solely Xxxxxxx X. Xxxxxx, solely in
in her capacity as Trustee his capacity as Trustee of the
of the Europa Cruises Europa Cruises Corporation
Corporation Employee Stock Employee Stock Ownership Plan,
Ownership Plan, Trust Trust Agreement
Agreement
/s/ XXXXXX X. XXXXX
-------------------------------
Xxxxxx X. Xxxxx, solely
in his capacity as Trustee
of the Europa Cruises
Corporation Employee Stock
Ownership Plan, Trust Agreement
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