Exhibit 4.7(2)
PROMISSORY NOTE
$60,000.00 April 15, 2003
MEGA GROUP, INC., a New York corporation, and SMALL BUSINESS INVESTMENT
CORPORATION OF AMERICA, INC., an Oregon corporation, both with offices at 0000
Xxxxx Xxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 20036 (jointly and
severally, "Borrower")
MATAH HOLDINGS, LLC, a New Jersey limited liability company, 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 0, Xxxxxx, XX 00000, ("Lender")
For value received, Xxxxxxxx promises to pay to the order of Lender, in lawful
money of the United States of America, at its office indicated above or wherever
else Lender may specify, the sum of Sixty Thousand Dollars ($60,000.00) or such
sum as may be outstanding from time to time, with interest on the unpaid
principal balance at the rate and on the terms provided in this Promissory Note
(including all renewals, extensions or modifications hereof, this "Note").
This Note is subject to the terms and conditions of that certain Loan and
Security Agreement between Xxxxxx and Borrower dated as of July 15, 2002, as the
same may be modified and amended from time to time (the "Loan Agreement"). All
capitalized terms not otherwise defined herein shall have such meaning as
assigned to them in the Loan Agreement.
INTEREST RATE TO BE APPLIED. Interest Rate. Interest shall accrue on the unpaid
principal balance of this Note from the date hereof at a fixed rate equal to
twelve percent (12.00%) per annum (the "Fixed Interest Rate"). Default Rate. In
addition to all other rights contained in this Note, if a Default in the payment
of principal or interest under this Note shall occur and be continuing, interest
on the unpaid principal balance of this Note shall accrue at the Fixed Interest
Rate plus 4% ("Default Rate"). The Default Rate shall also apply from
acceleration until the Obligations or any judgment thereon is paid in full,
except as otherwise required by law.
INTEREST COMPUTATION. Interest shall be computed on the basis of a 360-day year
for the actual number of days in the interest period ("Actual/360 Computation").
The Actual/360 Computation determines the annual effective interest yield by
taking the stated (nominal) interest rate for a year's period and then dividing
said rate by 360 to determine the daily periodic rate to be applied for each day
in the interest period. Application of the Actual/360 Computation produces an
annualized effective interest rate exceeding that of the nominal rate.
REPAYMENT TERMS. The entire unpaid principal amount hereof, together with
accrued and unpaid interest thereon and all other amounts payable hereunder,
shall be due and payable on July 15, 2003 (the "Maturity Date").
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PREPAYMENT TERMS. The Loan may be prepaid, in whole or in part, at any time and
from time to time without penalty.
RESCISSION OF PAYMENTS. If any payment received by Lender under this Note or the
other Loan Documents is rescinded, avoided or for any reason returned by Lender
because of any adverse claim or threatened action, the returned payment shall
remain payable as an obligation of all Persons liable under this Note or the
other Loan Documents as though such payment had not been made.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Xxxxxx's
reasonable expenses incurred to enforce or collect any of the Obligations,
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. Regardless of any other provision of this Note or other Loan Documents,
if for any reason the effective interest should exceed the maximum lawful
interest, the effective interest shall be deemed reduced to, and shall be, such
maximum lawful interest, and (i) the amount which would be excessive interest
shall be deemed applied to the reduction of the principal balance of this Note
and not to the payment of interest, and (ii) if the loan evidenced by this Note
has been or is thereby paid in full, the excess shall be returned to the party
paying same, such application to the principal balance of this Note or the
refunding of excess to be a complete settlement and acquittance thereof.
EVENT OF DEFAULT. An "Event of Default" shall exist if any one or more of the
following events shall occur (individually, an "Event of Default," and
collectively, "Events of Default"): Non-Payment; Non-Performance. The failure of
timely payment or performance of the Obligations under this Note. Cross-Default.
The occurrence of an Event of Default under any of the other Loan Documents.
REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of Default,
Lender may at any time thereafter, take the following actions: Acceleration Upon
Event of Default. Accelerate the maturity of this Note and all other
Obligations, and all of the Obligations shall be immediately due and payable.
Cumulative. Exercise any rights and remedies as provided under this Note and
other Loan Documents, or as provided by law or equity.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and
other Loan Documents shall be valid unless in writing and signed by an officer
of Lender. No waiver by Lender of any Default or Event of Default shall operate
as a waiver of any other Default or Event of Default or the same Default or
Event of Default on a future occasion. Neither the failure nor any delay on the
part of Lender in exercising any right, power, or remedy under this Note and
other Loan Documents shall
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operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
Borrower or any other Person liable under this Note waives presentment, protest,
notice of dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and all other
notices of any kind. Further, each agrees that Lender may extend, modify or
renew this Note or make a novation of the loan evidenced by this Note for any
period and grant any releases, compromises or indulgences with respect to any
collateral securing this Note, or with respect to Borrower or any Person liable
under this Note or other Loan Documents, all without notice to or consent of
Borrower or any Person who may be liable under this Note or other Loan Documents
and without affecting the liability of Borrower or any Person who may be liable
under this Note or other Loan Documents.
MISCELLANEOUS PROVISIONS. Assignment. This Note and other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Xxxxxx's interests in and
rights under this Note and other Loan Documents are freely assignable, in whole
or in part, by Xxxxxx. Borrower shall not assign its rights and interest
hereunder without the prior written consent of Xxxxxx, and any attempt by
Borrower to assign without Xxxxxx's prior written consent is null and void. Any
assignment shall not release Borrower from the Obligations. Applicable Law;
Conflict Between Documents. This Note and other Loan Documents shall be governed
by and construed under the laws of the state where Xxxxxx first shown above is
located as shown in the heading of this Note without regard to that state's
conflict of laws principles. If the terms of this Note should conflict with the
terms of the Loan Documents, the terms of this Note shall control. Severability.
If any provision of this Note or of the other Loan Documents shall be prohibited
or invalid under applicable law, such provision shall be ineffective but only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Note or other such
document. Plural; Captions. All references in the Loan Documents to Borrower,
Guarantor, Person, document or other nouns of reference mean both the singular
and plural form, as the case may be. The captions contained in the Loan
Documents are inserted for convenience only and shall not affect the meaning or
interpretation of the Loan Documents. Binding Contract. Borrower by execution of
and Xxxxxx by acceptance of this Note agree that each party is bound to all
terms and provisions of this Note. Entirety. This Note and the other Loan
Documents delivered in connection herewith and therewith embody the entire
agreement between the parties and supersede all prior agreements and
understandings relating to the subject matter hereof and thereof. Posting of
Payments. Unless otherwise permitted by Lender, any repayments of this Note,
other than immediately available U.S. currency, will not be credited to the
outstanding loan balance until Xxxxxx receives collected funds. Fees and Taxes.
Borrower shall promptly pay all documentary, intangible recordation and/or
similar taxes on this transaction whether assessed at closing or arising from
time to time, together with any interest and/or penalties relating thereto.
Business Purpose. Borrower represents that the loan evidenced hereby is being
obtained for business purposes.
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PLACE OF EXECUTION AND DELIVERY. Borrower hereby certifies that this Note and
the other Loan Documents were executed in the State of New Jersey and delivered
to the Lender in the State of New Jersey.
IN WITNESS WHEREOF, Xxxxxxxx, as of the day and year first above written, has
caused this Note to be executed under seal.
MEGA GROUP, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------
Name: Xxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
Attest: By: /s/ Xxxxx X. Xxxxx
-----------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
[SEAL]
Taxpayer Identification Number:
00-0000000
SMALL BUSINESS INVESTMENT
CORPORATION OF AMERICA, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------
Name: Xxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
Attest: By: /s/ Xxxxx X. Xxxxx
--------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
[SEAL]
Taxpayer Identification Number:
00-0000000
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