EXHIBIT 2.8
PROMISSORY NOTE
Dated April 5, 0000
Xxxxxxx
Xxxx Xxxx Group, Inc.
And
Xxxxxx Capital, LLC
$2,750,000
Executed Copy
SECURED PROMISSORY NOTE
$2,750,000.00 Dated this 5th day of April, 2001
Effective January 1, 2001
FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby
expressly acknowledged, Park City Group, Inc., a Delaware corporation, located
at 000 Xxxx Xxxxxx, Xxxx Xxxx, Xxxx 00000 (the "Maker"), promises to pay to the
order of Xxxxxx Capital, LLC ("Holder"), at 000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000, or at such other place as the Holder may from time to time
designate in writing, the principal sum of TWO MILLION SEVEN HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($2,750,000.00).
Interest shall accrue on the unpaid principal balance outstanding on
this Note from time to time at a per annum rate of ten percent (10%). Interest
shall be payable on a monthly basis in arrears, beginning with the first
interest payment on April 10, 2001 representing the interest accruing from
January 1, 2001 through March 31, 2001, and continuing on the first day of each
month thereafter until this Note is paid in full. Principal shall be payable in
three payments as follows: (a) the first payment shall be in the amount of One
Million and No/100 Dollars ($1,000,000.00) due and payable on December 20, 2001,
(b) the second payment shall be in the amount of Five Hundred Thousand and
No/100 Dollars ($500,000.00) due and payable on June 20, 2002, and (c) the
balance of the principal, together with all accrued but unpaid interest being
due and payable on December 20, 2002. Interest shall be calculated based on a
365 day year, and shall be computed for the actual number of days in the period
for which interest is charged. Principal and interest are payable in lawful
money of the United States of America.
This Note (i) is guaranteed by Xxxxxx Fields, LLC, a Utah limited
liability company ("Xxxxxx Fields") Riverview Financial Corp., a California
corporation ("Riverview"), Xxxxxxx X. Xxxxxx, a Utah Resident ("Fields"), and
Xxxxxxx X. Xxxxxxx (each of which is individually a "Guarantor," and
collectively the "Guarantors") under that certain Guaranty Agreement dated of
even date herewith and delivered by the Guarantors to Holder, and is secured
pursuant to the terms of those certain Security Agreements and those certain
Real Estate Security Documents described on Exhibit A attached hereto, each
dated of even date herewith and delivered by Maker and certain of the Guarantors
to the Holder (the Guaranty Agreement, the Security Agreements, and the Real
Estate Security Documents described on Exhibit A, collectively the "Security
Documents").
All payments shall be credited first to costs of collection hereof or
to the costs or expenses of Holder under the Security Documents, then to accrued
and unpaid interest and then to principal. Maker shall have the right to prepay
all, or any portion, of the indebtedness owing under this Note at any time
without penalty, with the portion of any prepayments allocated to principal
being applied in reverse order of maturity.
The failure by Maker to cure any default in payment of principal or
interest when and as the same shall become due and payable or the occurrence of
a breach, default or Event of Default as defined under that certain Master
Agreement dated of even date herewith between Holder, Maker, Riverview, Xxxxxx
Fields, and Fields or any of the Security Documents shall be an event of default
hereunder (an "Event of Default"). Upon any Event of Default, the unpaid
principal balance hereof, at the option of the Holder, shall at once become due
and payable. The filing of bankruptcy, receivership or similar proceedings, or
an assignment for the benefit of creditors by or against the Maker or any of the
Guarantors shall constitute an event of default hereunder, whereupon, all
obligations hereunder shall become immediately due and payable without any
action on the part of Holder.
Maker, Guarantors, endorsers, guarantors and sureties of this Note
hereby waive diligence, demand for payment, presentment for payment, protest,
notice of nonpayment, notice of protest, notice of intent to accelerate, notice
of acceleration, notice of dishonor, and notice of nonpayment, and all other
notices or demands of any kind and expressly agree that, without in any way
affecting the liability of Maker, Guarantors, endorsers, guarantors, or
sureties, the Holder may extend any maturity date or the time for payment of any
installment due hereunder, accept security for the performance of the
obligations hereunder, release any person liable, and release any security or
guaranty. Maker, Guarantors, endorsers, guarantors, and sureties waive, to the
full extent permitted by law, the right to plead any and all statutes of
limitations as a defense.
No provision of this Note may be changed, discharged, terminated, or
waived except in a writing signed by the party against whom enforcement of the
change, discharge, termination, or waiver is sought. No failure on the part of
the Holder to exercise and no delay by the Holder in exercising any right or
remedy under this Note or under the law shall operate as a waiver thereof.
If this Note is not paid when due, Maker promises to pay all costs of
enforcement and collection, including but not limited to, reasonable attorneys'
fees, whether or not any action or proceeding is brought to enforce this Note
(including, without limitation, all such costs incurred in connection with any
bankruptcy, receivership, foreclosure or other proceedings (whether at the trial
or appellate level)).
If any provision of this Note, or any of the Security Documents is
unenforceable, the enforceability of the other provisions shall not be affected
and they shall remain in full force and effect. If any one or more Security
Documents is unenforceable against any one or more Guarantors, such
enforceability shall not affect the obligation of Maker hereunder and this Note
shall remain in full force and effect.
In this Note the singular shall include the plural and the masculine
shall include the feminine and neuter gender, and vice versa.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF UTAH.
This Note will be binding upon, and inure to the benefit of, the
Holder, Maker, the Guarantors, and their respective successors and assigns.
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All notices referred to in this Note shall be in writing and shall be
deliverable personally or by certified or registered mail, return receipt
requested, postage prepaid, and will be deemed to have been given when so
delivered or mailed (i) to the Maker, at its address as shown above and (ii) to
the Holder of this Note, at such Holder's address as shown above (unless another
address is given by Maker or Holder in a written notice given pursuant to this
provision, which notice of change of address shall be effective only when
received or 5 days after mailing in the manner set forth above).
IN WITNESS WHEREOF, Maker has executed and delivered this Note under
seal effective as of the day and year first above written.
MAKER:
Park City Group, Inc., a Delaware corporation
By: ________________________________________
Title: ______________________________________
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EXHIBIT A
(Attached to and forming a part of that certain Secured
Promissory Note dated April 5, 2001, effective as
of January 1, 2001, and executed by
Park City Group, Inc. for the benefit of Xxxxxx Capital, LLC)
List of Security Agreements and ReaL ESTATE SECURITY DOCUMENTS
1. Guaranty Agreement dated of an even date herewith, executed by Riverview
Financial Corp., a California corporation, Xxxxxx Fields, LLC, a Utah limited
liability company, Xxxxxxx X. Xxxxxx, a Utah resident, and Xxxxxxx X. Xxxxxxx, a
Utah resident, as Guarantors in favor of Xxxxxx Capital, LLC, a Georgia limited
liability company.
2. Stock Pledge and Security Agreement dated of an even date herewith, executed
by Riverview Financial Corp. in favor of Xxxxxx Capital, LLC.
3. Irrevocable Stock Power dated of an even date herewith, executed by Riverview
Financial Corp. in favor of Xxxxxx Capital, LLC.
4. Stock Certificates representing 33 1/3% of the equity and voting interests in
Maker, delivered to Xxxxxx Capital, LLC, and Stock Certificates representing
that number of additional shares of Maker which, when added to the 33 1/3%,
equals more than 50% of the equity and voting interests in Maker, delivered to
First American Title Insurance Company, Inc., each pursuant to the terms of the
Stock Pledge and Security Agreement referred to in item 2 above.
5. Membership Interest Pledge and Security Agreement dated of an even date
herewith, executed by Park City Group, Inc. in favor of Xxxxxx Capital, LLC,
pertaining to all of the member interests in Xxxxxx Fields, LLC, a Utah limited
liability company.
6. Irrevocable Member Interest Stock Power dated of an even date herewith,
executed by Park City Group, Inc. in favor of Xxxxxx Capital, LLC, pertaining to
all of the membership interests in Xxxxxx Fields, LLC.
7. Stock Pledge with respect to a first priority, perfected security interest in
50% of the ownership interests in Vallarta Cuatro, Ltd, effective as of an even
date herewith and to be delivered within 30 days of the date of execution
hereof, executed by Xxxxx Xxxxxx, pledging all of his interest in Vallarta
Cuatro, Ltd, which interests represent 50% of the equity and voting interests in
such entity, which entity owns certain real estate located in Mexico represented
to Holder as a condominium valued at approximately $1,000,000.00, and located at
Puerto Vallarta, Mexico, together with share certificates or similar evidence of
ownership representing such 50% ownership in said entity and appropriate blank
form stock powers or similar documentation sufficient to transfer ownership of
such interests, and appropriate evidence of such entity's ownership of said
condominium.
8. UCC financing statements relating to the security interests referred to
above.
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