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Exhibit 10.10
PROMISSORY NOTE
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$3,000,000 May 11, 1999
For value received, the undersigned, TOUCH 1 COMMUNICATIONS, INC., an
Alabama corporation (the "Borrower") promises to pay to the order of XXXXXX
ELEGRE CAPITAL, LLC, an Alabama limited liability company (the "Holder"), at
Holder's principal place of business, 000 Xxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx
00000, in lawful money of the United States of America, the principal sum of up
to THREE MILLION AND 00/100 DOLLARS ($3,000,000) or such lesser amount as may
be the aggregate principal amount outstanding hereunder (the "Loan").
Interest shall accrue on the Loan at a per annum rate equal to the sum
of (i) the Prime Rate (as defined below) plus (ii) one and one-half percent
(1.5%) per annum in simple interest terms computed on the basis of a 360-day
year for the actual number of days elapsed. As used herein, the term "Prime
Rate" means the fluctuating per annum rate of interest designated by the Bank
of Xxxxxxx in Brewton, Alabama as its "prime rate." Accrued interest only shall
be payable quarterly (every three months) on the outstanding principal balance,
beginning on August 11, 1999, and continuing on the same day of each quarter
thereafter, with the entire principal balance of said debt, together with
accrued interest thereon, being due and payable on May 10, 2001.
Borrower agrees to pay all costs of the collecting or securing, or
attempting to collect or secure, the Promissory Note (the "Note"), including a
reasonable attorney's fee, whether same be collected or secured by suit or
otherwise. Borrower hereby waives demand, presentment, protest, notice of
protest, and all other notices whatsoever.
This Note is to be construed according to the laws of the State of
Alabama.
In the event that any installment of interest and/or principal shall
not have been paid on or before its due date, then Borrower shall pay to the
Holder a late charge of five percent (5%) of said amount or part thereof.
Notwithstanding anything herein to the contrary, payment of any installment of
interest and/or principal provided for herein shall not be in default and no
late charge shall be payable until more than five (5) days have elapsed from
the due date thereof.
In no event will the sum of all interest and all other amounts deemed
or treated as interest under applicable law and payable hereunder exceed the
maximum lawful rate of interest allowed to be charged hereunder the law on
similar loans. Borrower and Holder intend that under no circumstances will
Borrower be required to pay interest on the outstanding principal balance of
this Note at a rate that exceeds the maximum lawful rate of interest allowed to
be charged under law on similar loans. In the event any interest is received or
charged by the holder hereof in excess of that amount, Borrower will be
entitled to an immediate refund thereof.
This Note is secured by a security interest in certain assets of
Borrower as set forth in that certain Security Agreement dated July 21, 1998
executed by Borrower, Touch 1, Inc., and DirecTel, Inc., in favor of Holder, as
amended by First Amendment to Security Agreement dated
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September 24, 1998, as further amended by Second Amendment to Security
Agreement dated October 7, 1998, as further amended by Third Amendment to
Security Agreement of even date herewith (as amended, the "Security
Agreement"). Upon failure to pay any installment of interest and/or principal
when due, or if any of the terms, conditions, or provisions of said Security
Agreement are not complied with, then the entire principal sum and all other
sums due hereunder, at the option of Holder, shall immediately become due and
payable. Failure to exercise this option shall not constitute a waiver of right
to exercise the same in the event of any subsequent default.
IN WITNESS WHEREOF, Borrower has hereunto caused its name to be
affixed by its duly authorized officer, as of the day and date above written.
TOUCH 1 COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxx
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Its: Secretary
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