EXHIBIT 10.87
P&R NOTE
$560,000.00 March 29, 2002
Los Angeles, California
FOR VALUE RECEIVED, the receipt and sufficiency of which is
acknowledged, Xxxxxx & Xxxxxxxxxx, A Law Corporation ("Maker"), hereby promises
to pay to STAAR Surgical Company, or order ("Holder"), at the address designated
on the signature page of this Note, or at such other place as Holder may
designate by written notice to Maker, the principal sum herein below described
("Principal Amount"), together with interest thereon, in the manner and at the
times provided and subject to the terms and conditions described herein.
1. PRINCIPAL AMOUNT.
The Principal Amount means the sum of $560,000.00.
2. INTEREST.
Interest on the Principal Amount from time-to-time remaining
unpaid shall accrue from the Commencement Date (as that term is defined herein)
at the rate of five percent (5%) per annum, compounded annually. Interest shall
be computed on the basis of a three hundred sixty (360) day year and a thirty
(30) day month.
3. PAYMENT OF PRINCIPAL AND INTEREST.
Subject to paragraph 9, below, Maker shall pay the Principal
Amount and all accrued and unpaid interest on the Principal Amount and all other
indebtedness due under this Note in forty-seven (47) equal monthly installments
of ten thousand dollars ($10,000) each, commencing one (1) month from the
Commencement Date, and concluding three (3) years and eleven (11) months from
the Commencement Date, and one (1) payment due four (4) years from the
Commencement Date, for all sums remaining due under this Note (i.e., approx.
$153,552). If the date set for payment by Maker of any installment or other sum
due under this Note falls on a Saturday, Sunday or holiday recognized by either
the United States of America or the State of California, payment under this Note
shall be due on the first subsequent business day.
4. COMMENCEMENT DATE.
The Commencement Date shall be June 1, 2002.
5. SECURITY/RELEASE OF SECURITY.
Maker shall pledge as security for the repayment of all sums
payable under this Note all of Maker's accounts receivable, both those existing
at the time of the execution of this Note and those which come into existence at
a future date prior to the exoneration of this Note. Maker shall execute a
Security Agreement of even date evidencing Xxxxxx's security interest in the
accounts receivable. If, at a future date, Maker obtains a line of credit from a
third party, not to exceed $250,000, secured by Maker's accounts receivable,
Xxxxxx's security interest in
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Maker's accounts receivable will be subordinated to the security interest of the
party which extends the line of credit to Maker. This Note shall be recourse as
to Maker, but non-recourse as to Maker's shareholders, officers, directors,
agents and employees.
6. PREPAYMENTS.
Maker shall have the right to prepay any portion of the
Principal Amount and interest due without prepayment penalty or premium or
discount.
7. MANNER OF PAYMENTS/CREDITING OF PAYMENTS.
Payments of any amount required hereunder shall be made in
lawful money of the United States or in such other property as Holder, in its
sole and absolute discretion, may accept, without deduction or offset, and shall
be credited first against accrued but unpaid fees and costs, if any, thereafter
against accrued but unpaid interest, if any, and thereafter against the unpaid
balance of the Principal Amount.
8. INTEREST ON DELINQUENT PAYMENTS.
Any payment under this Note not paid when due shall bear
interest at the same rate and method as interest is charged on the Principal
Amount from the due date until paid.
9. ACCELERATION UPON DEFAULT.
At the option of Holder, all or any part of the indebtedness of
Maker hereunder shall immediately become due and payable, irrespective of any
agreed maturity date, upon the happening of any of the following events of
default:
(a) If Maker shall breach any condition or
obligation imposed on Maker pursuant to the terms of this Note, the
Settlement Agreement And General Release of even date, or the Security
Agreement of even date, provided however that if any such breach is
reasonably susceptible of being cured, Maker shall be entitled to a
grace period of fifteen (15) days following written notice of such event
of default to cure;
(b) If Maker shall make an assignment for the
benefit of creditors;
(c) If a custodian, trustee, receiver, or agent is
appointed or takes possession of substantially all of the property of
Maker;
(d) If Maker shall be adjudicated bankrupt or
insolvent or admit in writing Maker's inability to pay Maker's debts as
they become due;
(e) if any petition is filed against Maker under the
Bankruptcy Code and either (A) the Bankruptcy Court orders relief
against Maker, or (B) such petition is not dismissed by the Bankruptcy
Court within thirty (30) days of the date of filing;
(f) If any attachment, execution or other writ is
levied on substantially all of the assets of Maker and remains in effect
for more than five (5) days; or
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(g) If Maker shall apply for or consent to the
appointment of a custodian, trustee, receiver, intervenor, liquidator or
agent of Maker, or commence any proceeding related to Maker under any
bankruptcy or reorganization statute, or under any arrangement,
insolvency, readjustment of debt, dissolution, or liquidation law of any
jurisdiction, whether now or hereafter in effect.
Maker shall notify Holder immediately if any event of default occurs.
10. COLLECTION COSTS AND ATTORNEYS' FEES.
Maker agrees to pay Holder all costs and expenses, including
reasonable attorneys' fees, paid or incurred by Holder in connection with the
collection or enforcement of this Note or any instrument securing payment of
this Note, including without limitation, defending the priority of such
instrument or conducting a trustee sale thereunder. In the event any litigation
is initiated concerning the enforcement, interpretation or collection of this
Note by the parties hereto, the prevailing party in any such proceeding shall be
entitled to receive from the non-prevailing party all costs and expenses
including, without limitation, reasonable attorneys' and other fees incurred by
the prevailing party in connection with such action or proceeding.
11. NOTICE.
Any notice to either party under this Note shall be given by
personal delivery or by express mail, Federal Express, DHL or similar
airborne/overnight delivery service, or by mailing such notice by first class or
certified mail, return receipt requested, addressed to such party at the address
set forth below, or to such other address as either party from time to time may
designate by written notice. Notices delivered by overnight delivery service
shall be deemed delivered the next business day following consignment to such
delivery service. Mailed notices shall be deemed delivered and received in
accordance with this provision three (3) days after deposit in the United States
mail.
12. USURY COMPLIANCE.
All agreements between Maker and Holder are expressly limited,
so that in no event or contingency whatsoever, whether by reason of the
consideration givenwith respect to this Note, the acceleration of maturity of
the unpaid Principal Amount and interest thereon, or otherwise, shall the amount
paid or agreed to be paid to Holder for the use, forbearance, or detention of
the indebtedness which is the subject of this Note exceed the highest lawful
rate permissible under the applicable usury laws. If, under any circumstances
whatsoever, fulfillment of any provision of this Note shall involve transcending
the highest interest rate permitted by law which a court of competent
jurisdiction deems applicable, then the obligations to be fulfilled shall be
reduced to such maximum rate, and if, under any circumstances whatsoever, Holder
shall ever receive as interest an amount that exceeds the highest lawful rate,
the amount that would be excessive interest shall be applied to the reduction of
the unpaid Principal Amount under this Note and not to the payment of interest,
or, if such excessive interest exceeds the unpaid balance of the Principal
Amount under this Note, such excess shall be refunded to Maker. This provision
shall control every other provision of all agreements between Maker and Holder.
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13. JURISDICTION; VENUE.
This Note shall be governed by, interpreted under and construed
and enforced in accordance with the laws of the State of California, excluding
any law relating to the conflict of laws. Any action to enforce payment of this
Note shall be filed and heard solely in Los Angeles County, California.
14. BUSINESS PURPOSE.
This Note is entered into by Maker in connection with a business
transaction and not for personal, family or household purposes.
MAKER:
Xxxxxx & Xxxxxxxxxx
A Law Corporation
By: /s/ Xxxxx X. Xxxxxxxxxx, Jr.
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Xxxxx X. Xxxxxxxxxx, Jr., President
MAKER'S ADDRESS:
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
XXXXXX'S ADDRESS:
STAAR SURGICAL COMPANY
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn.: Chief Financial Officer
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