EXHIBIT 2
PROMISSORY NOTE
Dated: April 30, 2002
FOR VALUE RECEIVED, the undersigned (hereinafter called the "Maker")
hereby promises to pay to Transworld Healthcare, Inc., a New York corporation
("TWUS" and, in its capacity as lender, the "Lender"), or its registered
assigns, at its office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, or
at such other address as the Lender or any subsequent holder of this Promissory
Note shall stipulate in written notice to the Maker, the principal amount of
Five Hundred Fifty Thousand Dollars and Zero Cents ($550,000) (the "Principal,"
plus any accrued but unpaid interest and, less any principal amount repaid, the
"Outstanding Principal Balance"), with interest, compounding annually, on the
Outstanding Principal Balance at the fixed rate of four and sixty-five
one-hundredths percent (4.65%) per annum. This Promissory Note is being issued
to evidence a certain loan made by the Lender on a recourse basis (as set forth
herein), the proceeds of which will be used by the Maker to pay United States
federal, New York state, and, if applicable, New York City income taxes imposed
on the Maker's Taxable Compensation Income. Capitalized terms not otherwise
defined herein shall have the meanings specified in the Tax Bonus, Tax Loan and
Tax Indemnification Agreement dated April 22, 2002 herewith by and between the
Maker, TWUS and TWUK (as amended, modified or otherwise supplemented from time
to time, the "Indemnification Agreement").
SECTION 1. PAYMENT.
1.1. Maturity Date. The Maker shall be required to pay to the Lender
the unpaid Principal plus all unpaid, accrued interest on the earlier to occur
of: (a) April 30, 2007, and (b) the date on which the Maker has sold or
otherwise disposed of all of the TWUS Common Shares received pursuant to the
Issuance (the "Shares") (such date, the "Maturity Date").
1.2. Interest. Interest shall accrue commencing on the date hereof and
shall be due and payable in full at the Maturity Date, or at such other times as
the Outstanding Principal Balance (or portions thereof) becomes due and payable
in accordance with the terms hereof.
1.3. Prepayment. The Maker shall have the right to prepay the
Outstanding Principal Balance of this Promissory Note at any time, in whole or
in part, without the consent of the Lender and without penalty or premium. Upon
a Mandatory Prepayment Event (as defined below), the Maker shall be required to
pay to the Lender, as a prepayment of this Promissory Note, an amount equal to
the Mandatory Prepayment Amount (as defined below). For purposes of this
Promissory Note, a "Mandatory Prepayment Event" means the sale or disposition of
any of the Shares. For purposes of this Promissory Note, the "Mandatory
Prepayment Amount" equals the product of (x) the then Outstanding Principal
Balance plus all unpaid accrued interest on the Outstanding Principal Balance
and (y) a fraction, the numerator of which is the number of Shares sold or
disposed by the Maker and the denominator of which is the total number of Shares
held by the Maker immediately prior to such sale of disposal.
1.4. Application of Payments. The amount of any payment received or
set-off made by the Lender with respect to any amount owed pursuant to this
Promissory Note shall be applied, as of the date such payment is received or
such set-off is made, to reduce an equivalent percentage of (a) the Outstanding
Principal Balance and (b) unpaid accrued interest as of the date of such
payment. Each of the Lender and any subsequent holder of this Promissory Note
agrees, by its acceptance hereof, that before disposing of this Promissory Note
or any part hereof it will make a notation hereon of all principal payments
previously made hereunder and of the date to which interest hereon has been
paid; provided, however, that the failure to make a notation of any payment made
on this Promissory Note shall not limit or otherwise affect the obligation of
the Maker hereunder with respect to payments of principal or interest on this
Promissory Note.
SECTION 2. SECURITY. All amounts due under this Promissory Note are and
shall be secured pursuant to the terms of the Pledge Agreement. The holder of
this Promissory Note is entitled to the benefits of the Pledge Agreement and the
security referred to therein, to which reference is hereby made for a
description of the properties and rights included in such security, the nature
of such security and the rights of the parties with respect to such security.
The Lender may enforce the agreements of the Maker contained therein and
exercise the remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the terms thereof.
SECTION 3. CONSIDERATION. In order to induce the Lender to accept this
Promissory Note and with full knowledge that the Lender will rely on the
representations and agreements contained herein, the Maker hereby represents,
warrants and agrees that this Promissory Note is a valid and binding obligation
of the undersigned, enforceable against the undersigned in accordance with its
terms and the Maker agrees that he will make indefeasible payment in full of all
amounts due under this Promissory Note as and when due hereunder in accordance
with the terms of this Promissory Note without claiming or asserting any
set-off. The obligations represented by this Promissory Note shall be absolute
irrespective of any set-off, claim, counterclaim, defense or other right which
the Maker may have against anyone for any reason whatsoever.
SECTION 4. EVENTS OF DEFAULT. In case an Event of Default (as defined
in the Pledge Agreement) shall occur and be continuing, the entire unpaid amount
of principal and interest due under this Promissory Note may become or may be
declared to be due and payable in the manner and with the effect provided in the
Pledge Agreement.
SECTION 5. MISCELLANEOUS.
5.1. Waiver of Presentment and Jury Trial. The Maker and any endorser
of this Promissory Note hereby expressly waive presentment for payment, demand,
notice of nonpayment and dishonor, protest, notice of protest and notice of any
other kind and waive trial by jury in any action or proceeding arising on, out
of, under or by reason of this Promissory Note.
5.2. Information. The Maker hereby acknowledges that neither TWUS nor
any of its affiliates has made any representations or recommendations whatsoever
to the Maker concerning TWUS (including, without limitation, the financial
condition, prospects or any other matters relating to TWUS) or the Maker's
purchase of the Shares, except as set forth in the Indemnification Agreement.
The Maker assumes all responsibility of keeping himself or herself informed of
the affairs and business of TWUS and its subsidiaries. The Maker acknowledges
and agrees that Xxxxxx does not have any obligation to inform the Maker of any
matter relating to TWUS and its subsidiaries or their business and affairs.
5.3. Successors and Assigns. This Promissory Note shall be binding upon
and enforceable against the Maker and his heirs, successors and assigns. The
Maker shall not have the right to assign all or any part of its rights or
obligations under this Promissory Note without the consent of the Lender, which
consent may be withheld in the sole discretion of the Lender. The Lender may
assign its rights and obligations under this Promissory Note without having to
obtain the consent of the Maker.
5.4. Obligations Independent. The obligations of the Maker hereunder
and under the Pledge Agreement shall not be contingent upon or affected by any
similar undertaking of any other employee of TWUS, TWUK or their subsidiaries.
5.5. Governing Law. The rights and liabilities of the parties hereto
shall be determined in accordance with the laws of the State of New York,
without regard to conflict of law principles.
5.6. No Waiver, Remedies. No failure to exercise and no delay in
exercising, on the part of the Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
5.7. Severability. If any provision of this Promissory Note is invalid
or unenforceable under any applicable law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such applicable law. Any provision hereof which may be
held invalid or unenforceable under any applicable law shall not affect the
validity or enforceability of any other provision hereof, and to this extent the
provisions hereof shall be severable.
5.8. Amendment. Except as expressly provided herein, this Promissory
Note may not be amended or otherwise modified except by a written instrument
signed by the Maker and the Lender.
5.9. Notices. All notices and other communications hereunder shall be
in writing and delivered, telecopied, or mailed (certified mail, return receipt
requested, postage prepaid) as described in the Indemnification Agreement.
5.10. Recourse. The obligations of the Maker under this Promissory Note
and the Pledge Agreement, are personal obligations of the Maker, and the Lender
shall have recourse to the Maker or his property for payment, satisfaction, or
discharge of such obligations.
IN WITNESS WHEREOF, the Maker has caused this Promissory Note to be
executed as of the date hereof.
/s/ Xxx Xxxxxx
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Xxxxxxx X. Xxxxxx
TRANSACTION ON PROMISSORY NOTE
Outstanding
Amount of Amount of Principal
Principal Interest Paid Balance Notation
Date Paid This Date This Date This Date Made By
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