Exhibit 99.2
XXXxxxx.xxx, Inc.
Secured Promissory Note
$12,000,000 U.S. May 31, 2001
Atlanta, Georgia
XXXxxxx.xxx, Inc., a Kansas corporation (the "Company"), and XXXxxxx.xxx,
Inc., an Ontario corporation ("Shareholder," and together with the Company
referred herein to as "Borrowers"), jointly and severally and for value
received, hereby promise to pay to The InterCept Group, Inc., with an address at
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000, or registered assigns
("Holder"), on the Maturity Date (as defined below) the principal amount of
Twelve Million Dollars ($12,000,000), together with interest on the unpaid
principal balance hereof at the simple interest rate equal to the LIBOR Market
Index-Based Rate (as defined below).
In this Secured Promissory Note (this "Note"), the following terms have the
meanings given:
"LIBOR Market Index Rate" means, for any day, the rate per annum (rounded
to the next higher 1/100 of 1%) for 1 month U.S. dollar deposits as reported on
Telerate page 3750 as of 11:00 a.m., London time, on such day, or if such day is
not a London business day, then the immediately preceding London business day
(or if not so reported, then as determined by Holder from another recognized
source or interbank quotation).
"LIBOR Market Index-Based Rate" means, for any day, LIBOR Market Index Rate
plus two percent (2.0%) per annum, as LIBOR Market Index Rate may change from
day to day.
All agreements herein made are expressly limited so that in no event
whatsoever, whether by reason of advancement of proceeds hereof, acceleration of
maturity of the unpaid balance hereof, or otherwise, shall the amount paid or
agreed to be paid to Holder for the use of the money advanced or to be advanced
hereunder exceed the maximum rate permitted by law (the "Maximum Rate"). If, for
any circumstances whatsoever, the fulfillment of any provision of this Note or
any other agreement or instrument now or hereafter evidencing, securing or in
any way relating to the debt evidenced hereby shall involve the payment of
interest in excess of the Maximum Rate, then, ipso facto, the obligation to pay
interest hereunder shall be reduced to the Maximum Rate; and if for any
circumstance whatsoever, Holder shall ever receive interest, the amount of which
would exceed the amount collectible at the Maximum Rate, such amount as would be
excessive interest shall be applied to the reduction of the principal balance
remaining unpaid hereunder and not to the payment of interest. This provision
shall control every other provision in any and all other agreements and
instruments existing or hereafter arising between Borrowers and Holder with
respect to the debt evidenced hereby.
1
The following terms shall apply to payments hereunder:
(a) Except as provided below, principal of, and accrued and unpaid
interest on, this Note shall be due and payable in full on the Maturity Date.
The "Maturity Date" shall be December 31, 2002.
(b) [Intentionally omitted]
(c) If the Maturity Date would fall on a day that is not a Business
Day (as defined below), the payment due on the Maturity Date will be made on the
next succeeding Business Day with the same force and effect as if made on the
Maturity Date. "Business Day" means any day which is not a Saturday or Sunday
and is not a day on which banking institutions are generally authorized or
obligated to close in the City of Atlanta, Georgia.
(d) Borrowers may, at their option, prepay, in whole or in part, at
any time, the principal of this Note plus all accrued interest thereon, without
payment of any premium or penalty.
(e) Payment of principal and interest on this Note shall be made by
wire transfer or check sent to Xxxxxx's address set forth above or to such other
address as Holder may designate for such purpose from time to time by written
notice to Borrowers, 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;
(f) The obligations to make the payments provided for in this Note
are absolute and unconditional and not subject to any defense, set-off,
counterclaim, rescission, recoupment or adjustment whatsoever. Borrowers hereby
expressly waive demand and presentment for payment, notice of non-payment,
notice of dishonor, protest, notice of protest and diligence in taking any
action to collect any amount called for hereunder, and shall be directly and
primarily liable, jointly and severally, for the payment of all sums owing and
to be owing hereon, regardless of and without any notice, diligence, act or
omission with respect to the collection of any amount called for hereunder;
(g) Notwithstanding anything to the contrary herein, Borrower shall
prepay this Note upon the sale of any Pledged Collateral (as such term is
defined in the Pledge Agreement (as defined in the Loan Agreement)) in an amount
equal to the lesser of (i) the net proceeds of such sale, on the one hand, or
(ii) the outstanding principal balance hereof together with all accrued and
unpaid interest and charges thereon, on the other hand, which prepayment shall
be made no later than one (1) day following the consummation of such sale and
the payment and delivery of the net proceeds.
Time is of the essence of this Note. It is hereby expressly agreed that in
the event that any Event of Default shall occur under and as defined in that
certain Loan Agreement of even date herewith, between Borrowers and Holder (the
"Loan Agreement"), which Event of Default is not cured following the giving of
any applicable notice and within any applicable cure period
2
set forth in the Loan Agreement, then, and in such event, the entire outstanding
principal balance of the indebtedness evidenced hereby, together with any other
sums advanced hereunder, under the Loan Agreement and/or under any other
instrument or document now or hereafter evidencing, securing or in any way
relating to the indebtedness evidenced hereby, together with all unpaid interest
accrued thereon, shall, at the option of Holder and without notice to Borrowers,
at once become due and payable and may be collected forthwith, regardless of the
stipulated date of maturity. Upon the occurrence of any Event of Default as set
forth herein, at the option of Holder and without notice to Borrowers, all
accrued and unpaid interest, if any, shall be added to the outstanding principal
balance hereof, and the entire outstanding principal balance, as so adjusted,
shall bear interest thereafter until paid at an annual rate (the "Default Rate")
equal to the lesser of (a) the rate that is two percentage points (2%) in excess
of the LIBOR Market-Index Based Rate, or (ii) the Maximum Rate, regardless of
whether or not there has been an acceleration of the payment of principal as set
forth herein.
If this Note is placed in the hands of an attorney for collection, or if
Holder incurs any costs incident to the collection of the indebtedness evidenced
hereby, Borrowers and any endorsers hereof agree to pay to Holder an amount
equal to all such costs, including without limitation all reasonable attorneys'
fees and all court costs.
No failure to accelerate the indebtedness evidenced hereby by reason of an
Event of Default hereunder, or other indulgences granted from time to time or
course of dealing hereunder, shall be construed as a novation of this Note or as
a waiver of such right of acceleration or of the right of Holder thereafter to
insist upon strict compliance with the terms of this Note or to prevent the
exercise of such right of acceleration or any other right granted hereunder or
by applicable law. No extension of the time for payment of the indebtedness
evidenced hereby, made by agreement with any person now or hereafter liable for
payment of the indebtedness evidenced hereby, shall operate to release,
discharge, modify, change or affect the original liability of Borrowers
hereunder or that of any other person now or hereafter liable for payment of the
indebtedness evidenced hereby, either in whole or in part, unless Xxxxxx agrees
otherwise in writing. No right, power or remedy conferred by this Note upon
Holder shall be exclusive of any other right, power or remedy referred to herein
or now or hereafter available at law, in equity, by statute or otherwise, and
all such remedies may be exercised singly or concurrently. This Note may not be
changed orally, but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification, or discharge is sought.
The indebtedness and other obligations evidenced by this Note are further
evidenced by (i) the Loan Agreement and (ii) certain other instruments and
documents, as may be required to protect and preserve the rights of Borrowers
and Holder, as more specifically described in the Loan Agreement.
Upon the occurrence of an Event of Default, Holder shall be entitled to the
remedies provided for in the Loan Agreement and the Loan Documents (as defined
therein).
Upon receipt of evidence satisfactory to Borrowers, of the loss, theft,
destruction or mutilation of this Note (and upon surrender of this Note if
mutilated), including an affidavit of
3
Holder thereof that this Note has been lost, stolen, destroyed or mutilated
together with an indemnity against any claim that may be made against Borrowers
on account of such lost, stolen, destroyed or mutilated Note, and upon
reimbursement of Xxxxxxxxx' reasonable incidental expenses, Borrowers shall
execute and deliver to Holder a new Note of like date, tenor and denomination.
This Note shall be governed by and construed in accordance with the laws of
the State of Georgia, without giving effect to principles governing conflicts of
law.
Borrowers irrevocably consent to the exclusive jurisdiction of the courts
of the State of Georgia and of any federal court located in such State in
connection with any action or proceeding arising out of or relating to this
Note, any document or instrument delivered pursuant to, in connection with or
simultaneously with this Note, or a breach of this Note or any such document or
instrument.
As used herein, the terms "Borrowers" and "Holder" shall be deemed to
include their respective successors, legal representatives and assigns, whether
by voluntary action of the parties or by operation of law.
4
IN WITNESS WHEREOF, Borrowers have caused this Note to be executed and
dated the day and year first above written.
XXXxxxx.xxx, Inc., a Kansas corporation
By: /s/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: CFO/EVP
XXXxxxx.xxx, Inc., an Ontario corporation
By: /s/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: CFO/EVP
5
