Exhibit 10.3
PROMISSORY NOTE
---------------
$400,000 New York, New York
May 15, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXXX X. XXXXX ("Maker") and FSA
Capital, Inc., a Delaware corporation ("Co-Maker"), hereby jointly and severally
promise to pay to the order of XXXXXXX.XXX, LTD., a Delaware corporation, or any
subsequent holder or holders ("Holder") of this Promissory Note (this "Note"),
at 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as Holder may from time to time designate in writing, the principal sum of
Four Hundred Thousand Dollars ($400,000), together with all accrued interest on
such outstanding balance, in accordance with the terms and provisions of this
Note.
1. PRINCIPAL AND INTEREST. Interest shall accrue on the unpaid principal balance
of this Note from and after the date of this Note at an annual rate equal to six
percent (6.0%), compounded monthly.
2. MATURITY. The entire unpaid principal balance of this Note, together with all
accrued interest thereon, consisting in the aggregate of Four hundred
twenty-four thousand six hundred seventy-one dollars and 12/100 ($424,671.12),
shall be due and payable in full on May 15, 2001 (the "Maturity Date").
3. PAYMENTS. All payments by Maker or Co-Maker hereunder shall be applied (i)
first to any amount due Holder pursuant to Paragraph 8 of this Note, (ii) then
to the interest due and unpaid under this Note, and (iii) thereafter, to any
principal owing under this Note.
4. PREPAYMENT. Maker or Co-Maker shall have the right to prepay, in part or in
full, without penalty, this Note (together with all accrued interest to the date
of prepayment on the amount of principal thus prepaid) at any time or times.
5. WAIVER REGARDING NOTICE. Maker and Co-Maker waive presentment, demand and
presentation for payment, protest and notice of protest, and, except as
otherwise specifically provided herein, any other notices of whatever kind or
nature, bringing of suit and diligence in taking any action to collect any sums
owing hereunder. From time to time, without in any way affecting the obligation
of Maker or Co-Maker to pay the outstanding principal balance of this Note and
any interest accrued thereon and fully to observe and perform the covenants and
obligations of Maker and Co-Maker under this Note, without giving notice to, or
obtaining the consent of, Maker or Co-Maker, and without any liability
whatsoever on the part of Holder, Holder may, at its option, extend the time for
payment of interest hereon and/or principal of this Note, reduce the payments
hereunder, release anyone liable on this Note, accept a renewal of this Note,
join in any extension or subordination, or exercise any right or election
hereunder. No one or more of such actions shall constitute a novation or operate
to release Maker or Co-Maker.
6. EVENT OF DEFAULT. It shall constitute an "Event of Default" hereunder (i) for
Maker or Co-Maker to fail to make any required payment of principal and/or
interest under this Note, or any other amount due and payable under this Note,
on or before the date on which such payment is due under this Note, or (ii) for
there to be an Event of Default under the Pledge and Security Agreement, dated
as of the date hereof, among the Maker and the Holder (the "Pledge Agreement").
7. REMEDIES. Upon the occurrence of an Event of Default, Holder shall have the
right to cause the entire unpaid principal balance, together with all accrued
interest thereon, reasonable attorneys' fees and all fees, charges, costs and
expenses, if any, owed by Maker or Co-Maker to Holder of this Note, to become
immediately due and payable in full by giving written notice to Maker or
Co-Maker. Upon the occurrence of an Event of Default, Holder may avail itself of
any legal or equitable rights which Holder may have at law or in equity or under
this Note, including, but not limited to, the right to accelerate the
indebtedness due under this Note as described in the preceding sentence. The
remedies of Holder of this Note as provided herein shall be distinct and
cumulative, and may be pursued singly, successively or together, at the sole
discretion of Holder, and may be exercised as often as occasion therefor shall
arise. Failure to exercise any of the foregoing options upon the occurrence of
an Event of Default shall not constitute a waiver of the right to exercise the
same or any other option at any subsequent time in respect to the same or any
other Event of Default, and no single or partial exercise of any right or remedy
shall preclude other or further exercise of the same or any other right or
remedy. Holder shall have no duty to exercise any or all of the rights and
remedies herein provided or contemplated. The acceptance by Holder of any
payment hereunder that is less than payment in full of all amounts due and
payable at the time of such payment shall not constitute a waiver of the right
to exercise any of the foregoing rights or remedies at that time, or nullify any
prior exercise of any such rights or remedies without the express written
consent of Holder.
8. EXPENSES OF COLLECTION. If this Note is referred to an attorney for
collection, whether or not suit has been filed or any other action instituted or
taken to enforce or collect under this Note, Maker or Co-Maker shall pay all of
Holder's costs, fees (including reasonable attorneys' fees) and expenses in
connection with such referral.
9. GOVERNING LAW. The provisions of this Note shall be governed and construed
according to the laws of the State of New York, without giving effect to its
conflicts of laws provisions, shall be binding upon Maker and Co-Maker, and
shall inure to the benefit of Holder.
10. SECURITY. Payment of the indebtedness evidenced by this Note is secured by
certain securities of Maker pledged to Holder pursuant to the Pledge Agreement.
11. NO WAIVER. Neither any course of dealing by Holder nor any failure or delay
on its part to exercise any right, power or privilege hereunder shall operate as
a waiver of any right or remedy of Holder hereunder unless said waiver is in
writing and signed by Holder, and then only to the extent specifically set forth
in said writing. A waiver as to one event shall not be construed as a continuing
waiver by Holder or as a bar to or waiver of any right or remedy by Holder as to
any subsequent event.
-2-
12. MODIFICATION. This Note may not be modified orally, but only by an
instrument in writing.
13. NOTICES.
(a) All notices hereunder shall be in writing and shall either be hand
delivered, with receipt therefor, or sent by Federal Express or similar courier,
with receipt therefor, or by certified or registered mail, postage prepaid,
return receipt requested, as follows:
If to Maker: Xxxxxxx X. Xxxxx
---------------------------
---------------------------
---------------------------
If to Co-Maker: FSA Capital, Inc.
---------------------------
---------------------------
---------------------------
Attn: Xxxxxxx X. Xxxxx
If to Holder: XxxXxxx.xxx, Ltd.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Notices shall be effective when received.
(b) Any of the foregoing persons may change the address to which notices are to
be delivered to it hereunder by giving written notice to the others as provided
in this Paragraph 13.
14. CAPTIONS. The captions herein are for convenience of reference only and in
no way define or limit the scope or content of this Note or in any way affect
its provisions.
-3-
IN WITNESS WHEREOF, Maker and Co-Maker have executed this Promissory Note
on this 15th day of May, 2000.
WITNESS: MAKER:
------
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
----------------------- ----------------------
Xxxxxxx X. Xxxxx
CO-MAKER
--------
FOR: FSA Capital, Inc.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
-4-
