EXHIBIT 10
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION
STATEMENT UNDER THE ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT
TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM
REGISTRATION UNDER THE ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED
THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY
ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT
WITH ALL APPLICABLE PROVISIONS OF THE ACT AS WELL AS ANY APPLICABLE "BLUE SKY"
OR SIMILAR STATE SECURITIES LAW.
SACHEM FINANCIAL CONSULTANTS, LTD.
PROMISSORY NOTE
The Transferability of this Note
is Restricted as Provided in Section 2
Dated as of: March 26, 1997
$200,000.00 New York, New York
FOR VALUE RECEIVED, Sachem Financial Consultants, Ltd., a
Connecticut corporation (the "Company"), promises to pay to Capital Growth
Holdings, Ltd., a Colorado corporation, or its registered assigns (the
"Holder"), the principal amount of TWO HUNDRED THOUSAND DOLLARS ($200,000.00)
(the "Principal Amount"), in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, together with simple interest thereon at the rate of
six percent (6%) per annum (calculated on the basis of a 360-day year), at the
principal office of the Company, on March 26, 1998. No payments of principal
and/or interest shall be due until maturity.
Notwithstanding anything to the contrary herein contained, the
Principal Amount of this Note or any interest hereon may be prepaid at any
time or from time to time, prior to the maturity of this Note, in whole or in
part, without prior notice and without penalty or premium. Prepayments shall
be applied first to interest due and then to principal.
1. Covenants: The Company covenants and agrees that, so long
as the Note shall be outstanding and unpaid:
1.1 Payment of Note. The Company will punctually pay
or cause to be paid the Principal Amount and interest on this Note. Any sums
required to be withheld from any payment of Principal Amount or interest on
this Note by operation of law or pursuant to any
order, judgment, execution, treaty, rule or regulation may be withheld by the
Company and paid over in accordance therewith.
1.2 Nothing in this Note or in any other agreement
between the Holder and the Company shall require the Company to pay, or the
Holder to accept, interest in an amount which would subject the Holder to any
penalty or forfeiture under applicable law. In the event that the payment of
any charges, fees or other sums due under this Note or provided for in any
other agreement between the Company and the Holder are or could be held to be
in the nature of interest and would subject the Holder to any penalty or
forfeiture under applicable law, then ipso facto the obligations of the
Company to make such payment to the Holder shall be reduced to the highest
rate authorized under applicable law and, in the event that the Holder shall
have ever received, collected, accepted or applied as interest any amount in
excess of the maximum rate of interest permitted to be charged by applicable
law, such amount which would be excess interest under applicable law shall be
applied first to the reduction of principal then outstanding, and, second, if
such principal amount is paid in full, any remaining excess shall forthwith be
returned to the Company.
2. Restrictions Upon Transferability. This Note has not been
registered under the Act, and may not be offered, sold, pledged, hypothecated,
assigned or transferred except (i) pursuant to a registration statement under
the Act which has become effective and is current with respect to this Note,
or (ii) pursuant to a specific exemption from registration under the Act but
only upon a Holder hereof first having obtained the written opinion of counsel
to the Company, or other counsel reasonably acceptable to the Company, that
the proposed disposition is consistent with all applicable provisions of the
Act as well as any applicable "blue sky" or other state securities law.
3. Events of Default and Remedies. An "Event of Default"
shall occur if:
3.1 Payment of Notes. The Company defaults in the
payment of Principal Amount or interest of this Note, when and as the same
shall become due and payable whether at maturity thereof, or by acceleration
or otherwise, which default shall continue uncured for a period of thirty (30)
days from the date thereof; or
3.2 Performance of Covenants, Conditions or
Agreements. The Company fails to comply with any of the covenants, conditions
or agreements set forth in this Note and such default shall continue uncured
for a period of thirty (30) days after receipt of written notice to the
Company from the Holder stating the specific default or defaults; or
3.3 Bankruptcy, Insolvency, etc. The Company shall
file or consent by answer or otherwise to the entry of an order for relief or
approving a petition for relief, reorganization or arrangement or any other
petition in bankruptcy for liquidation or to take advantage of any bankruptcy
or insolvency law of any jurisdiction, or shall make an assignment for the
benefit of its creditors, or shall consent to the appointment of a custodian,
receiver, trustee or other
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officer with similar powers of itself or of any substantial part of its
property, or shall be adjudicated a bankrupt or insolvent, or shall take
corporate action for the purpose of any of the foregoing, or if a court or
governmental authority of competent jurisdiction shall enter an order
appointing a custodian, receiver, trustee or other officer with similar powers
with respect to the Company or any substantial part of its property or an
order for relief or approving a petition for relief or reorganization or any
other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law, or an order for the dissolution, winding up or
liquidation of the Company, or if any such petition shall be filed against the
Company and such petition shall not be dismissed within sixty (60) days.
3.4. Remedies. In case an Event of Default (other
than an Event of Default resulting from the Company's failure to pay the
Principal Amount of, or any interest upon, this Note, when the same shall be
due and payable in accordance with the terms hereof (after giving affect to
applicable "cure" provisions herein) and an Event of Default resulting from
bankruptcy, insolvency or reorganization) shall occur and be continuing, the
Holder of the Note may declare by notice in writing to the Company all unpaid
Principal Amount and accrued interest on the Note then outstanding to be due
and payable immediately. Any such acceleration may be annulled and past
defaults (except, unless theretofore cured, a default in payment of Principal
Amount or interest on the Note) may be waived by the Holder. In case an Event
of Default resulting from the Company's nonpayment of Principal Amount of, or
interest upon, this Note shall occur, the Holder may declare all unpaid
Principal Amount and accrued interest on this Note held by such Holder to be
due and payable immediately. In case an Event of Default resulting from
bankruptcy, insolvency or reorganization shall occur, all unpaid principal and
accrued interest on the Note held by the Holder shall be due and payable
immediately without any declaration or other act on the part of the Holder.
4. Costs of Collection. Should the indebtedness represented by this
Note or any part thereof be collected in any proceeding, or this Note be
placed in the hands of attorneys for collection after default, the Company
agrees to pay as an additional obligation under this Note, in addition to the
Principal Amount and interest due and payable hereon, all costs of collecting
this Note, including reasonable attorneys' fees.
5. Waiver and Amendments. This Note may be amended, modified,
superseded, canceled, renewed or extended, and the terms hereof may be waived
only by a written instrument signed by the Company and the Holder. No delay on
the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver hereof, nor shall any waiver on the part of any
party of any right, power or privilege or privilege hereunder preclude any
other or further exercise hereof or the exercise of any other right, power or
privilege hereunder. The rights and remedies provided herein are cumulative
and are not exclusive of any rights or remedies which any party may otherwise
have at law or in equity.
6. Loss, Theft, Destruction or Mutilation of Note. Upon
receipt by the Company of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation
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of this Note, and of indemnity or security reasonably satisfactory to the
Company, and upon reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of this Note, if
mutilated, the Company will make and deliver a new Note of like tenor, in lieu
of this Note. Any Note made and delivered in accordance with the provisions of
this Section 6 shall be dated as of the date to which interest has been paid
on this Note, or if no interest has theretofore been paid on this Note, then
dated the date hereof.
7. Notice. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed
or sent by certified, registered, or express mail, postage prepaid, and shall
be deemed given when so delivered personally, telegraphed or, if mailed, five
(5) days after the date of deposit in the United States mails, as follows:
(i) if to the Company, to:
Sachem Financial Consultants, Ltd.
00 Xxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Chairman
(ii) if to the Holder, to the address of such Holder as shown
on the books of the Company.
8. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
its conflicts of law principles. The Company agrees that any dispute or
controversy arising out of this Note shall be adjudicated in a court located
in New York City, and hereby submits to the exclusive jurisdiction of the
courts of the State of New York located in New York, New York and of the
federal courts in the Southern District of New York, and irrevocably waives
any objection it now or hereafter may have respecting the venue of such action
or proceeding brought in such a court or respecting the fact that such court
is an inconvenient forum, and consents to the service of process in any such
action or proceeding by means of registered or certified mail, return receipt
requested.
9. Successors and Assigns. All the covenants, stipulations,
promises and agreements in this Note contained by or on behalf of the Company
shall bind its successors and assigns, whether or not so expressed.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
in its corporate name by a duly authorized officer and to be dated as of the
date first above written.
SACHEM FINANCIAL CONSULTANTS, LTD.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
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