Exhibit 10.1
PROMISSORY NOTE
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Principal Loan Date Maturity
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$2,000,000.00 September 18, 2001 As specified below
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Parties and Addresses for Notices
Borrower: Lender:
DataVoN, Inc. J. Xxx Xxxxxx
000 X. Xxxxxxxx Xxxx, Xxxxx 000 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000 Xxxxxxxx, Xxxxxxx 00000
Principal Amount: $2,000,000.00
Interest Rate: 10% on all unpaid principal.
STATE OF TEXAS
COUNTY OF DALLAS
FOR VALUE RECEIVED, the undersigned DataVon, Inc., a Texas Corporation,
(hereinafter referred to as Maker) promises to pay to the order of J. Xxx
Xxxxxx, an individual resident of the State of Georgia (hereinafter referred to
as Holder), in lawful money of the United States of America, the principal
amount of Two Million and 00/100 Dollars ($2,000,000.00), or so much as may be
outstanding, together with interest on the unpaid outstanding principal balance
of each advance. Interest shall be calculated from the date of each advance
until repayment of each advance or maturity, whichever occurs first.
Interest Rate:
Interest shall accrue on the unpaid balance of the principal at the rate of ten
percent (10%) per annum on all unpaid principal prior to maturity.
Payment:
Maker will pay this loan in two payments of all outstanding principal plus all
accrued unpaid interest. The first such payment shall be made 180 days after the
Loan Date described above. The second such payment shall be made 180 days after
the Subsequent Borrowing, as defined below (collectively, the "Maturity Dates").
Prepayment:
Maker shall have the right to prepay the principal in whole or in part on each
date when an installment is due as provided above, and interest shall
immediately cease to accrue, as of the date of payment, on any amount of
principal that is prepaid. Prepayments shall be applied first to accrued but
unpaid interest and then to the payment of installments next due under this
paragraph.
Security:
The obligations hereunder are secured pursuant to a Security Agreement (the
"Security Agreement") executed by the Maker and the Holder contemporanteously
herewith.
Post Maturity Rate:
The post maturity rate on this Note is the maximum rate allowed by applicable
law. Maker will pay interest at the post maturity rate on all sums due after the
Maturity Dates.
Default:
On the occurrence of a default under this Note as defined below, Holder may, at
Holder's election, by written notice to Maker at the address stated above
(unless changed by written notice to Holder), accelerate the maturity date by
declaring the entire unpaid balance of principal and any unpaid interest to be
immediately due and payable.
Waivers:
Maker, every surety, and every endorser of this Note severally waive demand,
presentment, notice of dishonor, diligence in collecting, grace, and notice of
protest, and agree to all renewals, extensions, and partial payments both before
and after maturity without prejudice to Holder.
Attorney's Fees:
If this Note is not paid at maturity and is placed in the hands of an attorney
for collection, or if it is collected through a court of bankruptcy, probate, or
other court after maturity, then Holder shall be entitled to reasonable
attorney's fees for collection.
Usury Exclusion:
All agreements between Maker and Holder are expressly limited so that in no
contingency or event shall the amount paid, or agreed to be paid, to Holder for
the use, forbearance, or
detention of the money to be loaned under this Note exceed the maximum amount
permissible under applicable law. If, from any circumstances whatsoever,
fulfillment of any provision of this Note at the time the performance is due
would exceed the usury limit prescribed by law, then the obligation to be
fulfilled shall be reduced to that limit. If from any circumstances Holder shall
receive as interest an amount that would exceed the highest lawful rate, the
amount that would be excessive interest shall be applied to the reduction of the
principal amount owing under this Note, or shall be refunded, but shall not be
applied to payment of interest. Without limiting the foregoing, all calculations
of the rate of interest taken, reserved, contracted for, charged, received or
provided for under this Note or the Security Agreement which are made for the
purpose of determining whether the interest rate exceeds the maximum rate under
applicable law shall be made, to the extent allowed by law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full
stated term of the loan evidenced hereby, all interest at any time taken,
reserved, contracted for, charged, received or provided for under this Note or
the Security Agreement.
Line of Credit:
This Note evidences a line of credit under which Maker can request a maximum of
two advances. Advances under this Note may be requested only in writing by Maker
or as provided in this paragraph and only in amounts equal to $1,000,000. All
communications, instructions, or directions by telephone or otherwise to Holder
are to be directed to Holder's office shown above. The following party or
parties are authorized as provided in this paragraph to request advances under
the line of credit until Holder receives from Maker at Holder's address shown
above written notice of revocation of their authority: Chief Financial Officer
of Maker or Chief Executive Officer of Maker. Maker agrees to be liable for all
sums either: (a) advanced in accordance with the instruction of an authorized
person or (b) credited to any of Makers accounts with Holder. The unpaid
principal balance owing on this Note at any time may be evidenced by
endorsements on this Note or by Holder's internal records, including daily
computer print-outs. Holder will have no obligation to advance funds under this
Note if: (a) Maker or any guarantor is in default under the terms of this Note
or any agreement that Maker has with Holder, including any agreement made in
connection with the signing of this Note; (b) Maker ceases doing business or is
insolvent. This line of credit shall not be subject to Chapter 346 of the Texas
Finance Code. Unless otherwise agreed to by Holder in writing, no advances
hereunder may be requested more than 180 days after the Loan Date and no advance
("Subsequent Borrowing"), other than the advance made on the Loan Date, may be
requested unless Maker has at least $2,000,000 in Eligible Accounts Receivable,
as that term is defined in the Security Agreement executed by Maker and Holder
contemporaneously herewith.
Obligation to Advance
Notwithstanding any other provisions in this Note, but in addition to
limitations on Holder's obligation contained elsewhere herein, Holder shall have
no obligation to advance funds under this line of credit facility if a default,
as defined below, has occurred and is continuing.
Events of Default
Any of the following shall constitute events of default upon expiration of the
Cure Period as provided herein:
a) Non-payment of any amount due Holder, at such time as payment is
due;
b) Commencement of any voluntary bankruptcy, reorganization, and
insolvency, receivership, or similar proceeding under any federal law
including the Federal Bankruptcy Code, 11 U.S.C. (S) 101 et seq., or any
State law, including any assignment for benefit of creditors;
c) Any involuntary bankruptcy, reorganization, insolvency,
receivership or similar proceeding is commenced against Maker under any
Federal or State law, including, without limitation, the Federal Bankruptcy
Code, 11 U.S.C. (S) 101 et seq., which proceeding is not dismissed within
ten (10) days;
d) Maker suffers a lien which attaches to any property constituting
collateral for this Note under the terms of the Security Agreement;
e) Entry of a judgment against Maker, which judgment is not either
satisfied or appealed within sixty (60) days from entry;
f) Breach of or non-compliance with any warranty, convenant or
agreement under the Security Agreement; or
g) Breach of any warranty, covenant or agreement in that Warrant
Agreement executed by Maker in favor of Holder, and delivered
simultaneously herewith.
Notice of Default and Right to Cure
Notwithstanding anything to the contrary contained in this Note, in the event
of a default under this Note, Holder shall furnish Maker a notice of said
default (hereinafter "Notice of
Default") at the address specified for notices as set forth above. Maker shall
have cure periods as follows respecting events of default specified above:
i) with respect to payment of principal or interest due under this Note,
three (3) days;
ii) with respect to voluntary commencement of bankruptcy or other
proceedings as specified in subparagraph b of Defaults, no cure;
iii) with respect to actions commenced against Maker as specified in
subparagraph c of Defaults, no cure, other than as specified in
subparagraph c;
iv) with respect to all other defaults, ten (10) days.
PRIOR TO SIGNING THIS NOTE, MAKER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
NOTE. MAKER AGREES TO THE TERMS OF THIS NOTE AND ACKNOWLEDGES RECEIPT OF A
COMPLETED COPY OF THE NOTE.
DataVoN, Inc.
/s/ Xxxx X. Xxxxxxx
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By: Xxxx X. Xxxxxxx, CEO and President
