EXHIBIT 10.10
PROMISSORY NOTE
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$ 4,000,000 JANUARY 1, 1997
FOR VALUE RECEIVED, the undersigned maker, DTM Corporation, a Texas
corporation (the "Borrower") promises to pay to the order of THE X.X.XXXXXXXX
COMPANY, a New York corporation ("Lender"), at its principal office and place of
business in Richfield, Ohio, or at such other place as the holder hereof may
from time to time designate in writing, the principal amount outstanding
hereunder, which shall not exceed at any time, a maximum of Four Million Dollars
($4,000,000), as evidenced on Schedule A hereto from time to time, and as
described below (the "Loan"), on the earlier of July 31, 1998 or the date as of
which the Borrower receives the proceeds of an initial public stock offering
(the "Maturity Date"). This promissory note is given in replacement for the
promissory notes given by Borrower to Lender on November 15, 1996, April 26,
1996 and July 31, 1996, for $2,000,000, $1,000,000 and $1,000,000, respectively.
The Borrower shall pay interest on the unpaid principal amount of the Loan
from time to time from the date outstanding until paid in full at a rate per
annum equal to the prime commercial lending rate (or the base rate applicable to
general commercial borrowings, or the equivalent rate in effect at the time in
question, as the case may be), of Citibank, NA, New York, New York as published
from time to time in the Wall Street Journal. The interest rate shall be
adjusted quarterly on the first day of each calendar quarter on which rates are
quoted. Such interest shall be payable quarterly on the last day of each
calendar quarter, commencing on March 31, 1997, and at maturity. Interest
hereunder shall be computed on the basis of a year of 360 days and twelve 30-day
months. Any overdue payment of principal and, to the extent permitted by law,
interest on the Loan shall bear interest, payable on demand, at a rate per annum
equal to the rate of interest applicable prior to maturity plus one percent
(1%).
Borrower shall have the right at any time and from time to time to prepay
this Note in whole or in part, without premium or penalty, provided that three
day's notice is given prior to the effective date of prepayment and further
provided that any and all prepayments of principal shall be accompanied by
payment of all interest then accrued on the principal amount so prepaid. Any
sums received by the Lender or other holder hereof shall be applied first to
accrued interest.
If any payment of principal or interest on this Note shall become due on a
day on which banks in the State of Texas or New York are not open for business,
such payment shall be made on the next succeeding day on which banks in both of
the State of Texas and the State of New York are open (a "Business Day"), and
such extension of time shall in such case be included in computing interest in
connection with such payment.
The principal outstanding hereunder from time to time shall be recorded by
the Lender on Schedule A to this note, a copy of which, when delivered to the
Borrower, shall be conclusive as to the amounts outstanding absent evidence of
error.
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) Borrower fails to pay principal of this Note as and when due;
(b) Borrower fails to pay interest on this Note within 5 days of the date
due;
(c) Borrower becomes insolvent (however, such insolvency may be evidenced)
or proceedings are instituted by or against Borrower under the United
States Bankruptcy Code or under any bankruptcy, reorganization or
insolvency law or other law for the relief of debtors and are consented to
by Borrower or are not dismissed within 60 days of such institution,
then, in any such case, Lender may, by written notice to Borrower: a) declare
the outstanding principal amount of this Note to be forthwith due and payable,
together with accrued interest, whereupon the same shall become forthwith due
and payable without further notice, demand, protest, presentment or any other
notice or demand whatsoever, all of which are hereby waived by Borrower; and (b)
proceed to pursue any other right or remedy to which it may be entitled under
applicable law.
This Note shall be governed and construed according to the laws of the
State of Ohio. It is expressly stipulated and agreed to be the intent of the
Borrower and the Lender at all times to comply with the applicable Ohio law
governing the maximum rate or amount of interest payable on this Note or the
indebtedness evidenced hereby. If the applicable law is ever judicially
interpreted so as to render usurious any amount called for under this Note, or
contracted for, charged, taken, reserved or received with respect to such
indebtedness, or if any prepayment by the Borrower results in the Borrower
having paid any interest in excess of that permitted by applicable law, then it
is the Borrower's and the Lender's express intent that all excess amounts
theretofore collected by the Lender be credited on the principal balance of this
Note (or, if this Note has been or would thereby be paid in full, refunded to
the Borrower), and the provisions of this Note immediately be deemed reformed
and the amounts thereafter collectible hereunder and thereunder reduced, without
the necessity of the execution of any new document, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount otherwise
called for hereunder.
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DTM CORPORATION has caused this Note to be executed on its behalf by a duly
authorized officer as of January 1, 1997.
THE UNDERSIGNED WAIVES PRESENTMENT AND DEMAND FOR PAYMENT, NOTICE OF INTENT
TO ACCELERATE MATURITY, NOTICE OF ACCELERATION OF MATURITY, PROTEST AND NOTICE
OF PROTEST AND NON-PAYMENT, AND THE BRINGING OF SUIT AND DILIGENCE IN TAKING ANY
ACTION TO COLLECT ANY SUMS OWING HEREUNDER.
DTM CORPORATION
By: /s/ XXXX X. XXXXXXXXX III
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Name: XXXX X. XXXXXXXXX III
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Title: PRSIDENT
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THE STATE OF TEXAS )
) SS
COUNTY OF XXXXXX )
BEFORE ME, the undersigned authority on this 16th day of November, 1995,
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personally appeared Xxxxxxx X. Xxxxxxxx of DTM Corporation, a Texas
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corporation, known to me to be the person and officer whose name is subscribed
to the foregoing instrument and being by me first duly sworn acknowledged to me
that he executed the same as the act and deed of such corporation for the
purposes and consideration therein expressed, and in the capacity therein
stated.
/s/ Xxxxxxxx Xxxxx
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Notary Public in and for
Xxxxxx County, Texas
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