Exhibit 10.2
Exhibit 10.2
$3,225,000.00 OCTOBER 18, 2000
FOR VALUE RECEIVED, SURGILIGHT, INC. (the "Borrower"), unconditionally
promises to pay to PREMIER LASER SYSTEMS, INC. (the "Lender") a total of
$3,225,000.00 (the "Original Principal") in the manner and at the place
hereinafter provided on the following dates:
(1) On December 15, 2000, $1,000,000.00;
(2) On January 15, 2001, $1,000,000.00;
(3) On February 15, 2001, $725,000.00;
(4) On February 28, 2001, $500,000.00.
Section 1. Payments. All payments in respect of this Note shall be
made by wire transfer per the Wire Transfer Instructions attached hereto as
Exhibit 1. Whenever any payment on this Note is stated to be due on a day that
is not a Business Day, such payment shall instead be made on the next Business
Day, and such extension of time shall be included in the computation of interest
payable on this Note. "Business Day" means any day other than a Saturday, Sunday
or legal holiday under the laws of the State of California or any other day on
which banking institutions located in such state are authorized or required by
law or other governmental action to close.
Section 2. Voluntary Prepayments. The Borrower shall have the right at
any time and from time to time to prepay the principal of this Note in whole or
in part, without premium or penalty.
Section 3. Mandatory Prepayments. The outstanding principal amount
under this Note shall be prepaid from the proceeds of any sale, assignment, or
transfer for value of the Collateral (as defined in the Pledge and Security
Agreement (the "Pledge Agreement") dated as of the date hereof by and between
Borrower and Lender), except for the proceeds of the sale of inventory in the
ordinary course of business as provided for in Section 7 of the Pledge
Agreement. Not later than the business day after the proceeds are received by
Xxxxxxxx, the Borrower shall pay to the Lender the lesser of (i) the amount of
such proceeds or (ii) the unpaid principal amount under this Note made by the
Lender to the Borrower hereunder and any accrued, unpaid interest thereon.
Section 4. Interest. In the event that Xxxxxxxx has failed to pay the
full amount of the Original Principal by March 1, 2001, the Borrower promises to
pay, in addition to the unpaid principal, interest on the unpaid principal
amount thereof from the date on which the Event of Default resulting from
Xxxxxxxx's failure to pay such principal under this Note occurred until paid in
full at a rate equal to ten percent (10.0%) per annum. All computations of
interest shall be made by the Lender on the basis of a 365 day year, for the
actual number of days elapsed in the relevant period (including the first day
but excluding the last day). In no event shall the interest rate payable on this
Note exceed the maximum rate of interest permitted to be charged under
applicable law.
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Section 5. Events of Default. The occurrence of any of the following
events shall constitute an "Event of Default":
(a) failure of the Borrower to pay any principal under this Note when
due, whether at stated maturity, declaration, acceleration, demand,
mandatory prepayment or otherwise;
(b) a default by Borrower under (i) the Purchase Agreement dated as of
September 23, 2000 by and between Xxxxxxxx and Lender, (ii) the Patent
Assignment and License Agreement dated as of October 18, 2000 by and
between Borrower and Lender, or (iii) the Pledge Agreement.
(c) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Borrower in an involuntary
case under Title 11 of the United States Code entitled "Bankruptcy" (as now
and hereinafter in effect, or any successor thereto, the "Bankruptcy Code")
or any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, which decree or order is not stayed; or any other
similar relief shall be granted under any applicable federal or state law;
or (ii) an involuntary case shall be commenced against the Borrower under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the Borrower
or over all or a substantial part of its property shall have been entered;
or the involuntary appointment of an interim receiver, trustee or other
custodian of the Borrower for all or a substantial part of its property
shall have occurred; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of the property
of the Borrower, and, in the case of any event described in this clause
(ii), such event shall have continued for 90 days unless dismissed, bonded
or discharged; or
(d) an order for relief shall be entered with respect to the Borrower
or the Borrower shall commence a voluntary case under the Bankruptcy Code
or any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of
or taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or the Borrower shall make an assignment
for the benefit of creditors; or
Section 6. Remedies. Upon the occurrence of any Event of Default
specified above, the outstanding principal amount of this Note shall become
immediately due and payable, without presentment, demand, notice, protest or
other requirements of any kind (all of which are hereby expressly waived by the
Borrower).
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Section 7. Miscellaneous.
(a) All notices and other communications provided for hereunder shall
be in writing (including telegraphic, telex, telefacsimile or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or delivered
as follows: if to the Borrower, at its address specified opposite the Borrower's
signature below; and if to the Lender, at the address specified in Section 2
hereof, or in each case at such other address as shall be designated by the
Lender or the Borrower. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company, cable
company or overnight courier, as the case may be, or sent by telex or
telecopier.
(b) The Borrower promises to pay all costs and expenses, including
reasonable attorney's fees, incurred in connection with any modification of
this Note or any collection and enforcement of this Note.
(c) No failure or delay on the part of the Lender to exercise any
right, power or privilege under this Note shall impair such right, power or
privilege or operate as a waiver of any default or an acquiescence therein,
nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies expressly
provided in this Note are cumulative to, and not exclusive of, any rights
or remedies that the Lender would otherwise have.
(d) The Borrower hereby consents to renewals and extensions of time at
or after the maturity of this Note, without notice, and hereby waives
diligence, presentment, protest, demand and notice of every kind and, to
the full extent permitted by law.
(e) If any provision in or obligation under this Note shall be
invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction, shall not in any
way be affected or impaired thereby.
(f) This Note shall be binding upon the Borrower and the Lender and
their respective successors and assigns. None of the terms or provisions of
this Note may be waived, altered, modified or amended except in writing
duly signed for and on behalf of the Lender and the Borrower. This Note may
not be assigned by either party without the prior written consent of the
other party.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE
LENDER HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
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IN WITNESS WHEREOF, The Borrower has caused this Note to be executed
and delivered as of the day and year first above written.
SURGILIGHT, INC.
By: /s/ X.X. Xxx
------------------------------
X.X. Xxx, President and
Chief Executive Officer,
SurgiLight, Inc.
SurgiLight, Inc.
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
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