Exhibit 10.5
PROMISSORY NOTE
$300,000.00 January 7, 2000
GALAXY ENTERPRISES, INC., a Nevada corporation ("Galaxy") and XXXX X.
XXXXXXX, in his individual capacity ("Xxxxxxx" and together with Galaxy,
collectively and jointly and severally, "Maker") and NETGATEWAY, INC., a
Delaware corporation ("Holder") hereby agree as follows:
1. Principal.
For value received, Maker, jointly and severally, promises to pay to
the order of Holder, at its offices at 000 Xxxxxxxxx, 0xx Xxxxx, Xxxx Xxxxx,
Xxxxxxxxxx 00000, or at such other place as Holder may from time to time
designate in writing, the principal sum of Three Hundred Thousand and No One
Hundredths Dollars ($300,000.00), together with accrued interest from the date
of disbursement hereunder on the unpaid principal at the rate set forth in
Paragraph 4. As used herein, the term "Holder" shall mean Holder and any
subsequent holder of this Promissory Note (this "Note"), whichever is applicable
from time to time.
On the date hereof, Holder shall disburse Three Hundred Thousand and
No One Hundredths Dollars ($300,000) to Maker, pursuant to the terms hereof.
2. Maturity Date.
Galaxy and Holder intend to enter into the Merger Agreement pursuant
to which Galaxy Acquisition Corp. shall merge with and into Galaxy and Galaxy
will become a wholly-owned subsidiary of Holder (the "Transaction"). The unpaid
principal balance hereof, together with all unpaid interest accrued thereon,
shall be due and payable on June 1, 2000 or such earlier date, if any, that the
Transaction shall have been consummated (the "Maturity Date").
3. Prepayment.
This Note may be prepaid in full or in part, at any time without
penalty, upon not less than one business days' prior written notice to Holder.
Maker shall have no right to reborrow any such prepaid amounts.
4. Interest.
All interest on the outstanding principal balance hereof shall be
due and payable on the Maturity Date. The outstanding principal balance hereof
shall bear interest at a rate of 9.5% per annum. All payments of principal of
and interest on the Note shall be made without deduction of any present and
future taxes, levies, imposts, deductions, charges or withholdings, which
amounts shall be paid by Maker. Maker will pay the amounts necessary such that
the gross amount of the principal and interest received by Holder is not less
than that required by this Note. All stamp and documentary taxes shall be paid
by Maker. If, notwithstanding the foregoing, Holder pays such taxes, Maker
will reimburse Holder for the amount paid. Maker will furnish Holder official
tax receipts or other evidence of payment of all taxes. Throughout the term of
this Note, interest shall be calculated on a 360-day year, but shall be computed
for the actual number of days in the period for which interest is charged.
5. Manner of Payment.
Principal and interest are payable in lawful money of the United
States of America. All payments of principal and interest on the Note shall be
made to Holder in immediately available funds not later than 11:30 a.m. Los
Angeles time on the dates such payments are to be made. Any payment received
after 11:30 a.m. shall be deemed received by Holder on the next business day.
6. Applications of Payments.
Payments received by Holder pursuant to the terms hereof shall be
applied first to the payment of all interest accrued to the date of such payment
and second to the payment of principal. Notwithstanding anything to the contrary
contained herein, after the occurrence and during the continuation of an Event
of Default (as hereinafter defined), all amounts received by Holder from any
party shall be applied in such order as Holder, in its sole discretion, may
elect.
7. Security.
This Note is secured by a Pledge Agreement of even date herewith,
executed by Xxxxxxx in favor of Holder. Prior to the date hereof, Maker shall
have provided Holder with certified resolutions of the Board of Directors of
Maker approving the loan evidenced by this Note and the Pledge Agreement.
8. Events of Default.
The occurrence of any of the following shall be deemed to be an event
of default ("Event of Default") hereunder:
(a) Holder shall have notified Maker in writing of a default in the
payment of principal or interest when due pursuant to the terms hereof;
(b) If, on any date following the date of this Note and the Pledge
Agreement (the "Calculation Date"), the arithmetic mean of the closing
bid price of the common stock as reported on the OTC Bulletin Board for
the 5 consecutive trading days ending on the trading day preceding the
Calculation Date (the "Calculated Price") is equal to or less than 75%
of the closing bid price of the common stock of the Company on the date
of this Note and the Pledge Agreement (the "Closing Price"), and,
within 10 days after the Calculation Date, Xxxxxxx shall have failed to
deliver to Netgateway certificates representing an additional number of
shares of Galaxy's common stock equal to (i) the difference, in
dollars, between the Closing Price and the Calculated Price, multiplied
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by the number of shares of the common stock of Galaxy representing the
Stock Collateral, divided by (ii) the Calculated Price; or
(b) the occurrence of an Event of Default under the Pledge Agreement
now or hereafter securing this Note.
9. Remedies; Post-Default Rate; Late Charge.
Upon the occurrence of an Event of Default and without demand or
notice, Holder shall have the option to declare the entire balance of principal
together with all accrued interest thereon immediately due and payable and to
exercise all rights and remedies available to it under the Pledge Agreement or
applicable law. Notwithstanding any provision of this Note or the Pledge
Agreement to the contrary, any principal, accrued interest, and other amounts
payable under this Note or the Pledge Agreement which remain unpaid after the
Maturity Date or any acceleration of this Note, shall bear interest at a rate
per annum equal to 14.5% (the "Post-Default Rate"). If any payment under this
Note (whether of principal or interest or both and including the payment due on
the Maturity Date or upon any acceleration of this Note) is not paid within ten
(10) days after the date on which the payment is due, Maker shall pay to Holder,
in addition to the delinquent payment and without any requirement of notice or
demand by Holder, a late payment charge equal to five percent (5%) of such
delinquent amount. MAKER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FOREGOING
ACCRUAL OF INTEREST AT THE POST-DEFAULT RATE AND LATE PAYMENT CHARGE PROVISION
IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS NOTE, THAT IT
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO FIX HOLDER'S ACTUAL DAMAGES
ARISING OUT OF (i) ANY FAILURE TO PAY SUCH OUTSTANDING INDEBTEDNESS OF THIS NOTE
UPON THE MATURITY DATE OR UPON ANY ACCELERATION OF THIS NOTE AND (ii) ANY LATE
PAYMENT AND THAT INTEREST ACCRUED AT THE POST-DEFAULT RATE AND THE FOREGOING
LATE PAYMENT CHARGE SHALL BE PRESUMED TO BE THE ACTUAL AMOUNT OF SUCH DAMAGES
INCURRED BY HOLDER. The application of this default rate or late charge shall
not be interpreted or deemed to limit any of Holder's remedies hereunder or
thereunder. No delay or omission on the part of Holder hereof in exercising any
right under this Note or the Pledge Agreement shall operate as a waiver of such
right.
10. WAIVER.
MAKER HEREBY WAIVES DILIGENCE, PRESENTMENT, PROTEST AND DEMAND,
NOTICE OF PROTEST, DISHONOR AND NONPAYMENT OF THIS NOTE AND EXPRESSLY AGREES
THAT, WITHOUT IN ANY WAY AFFECTING THE LIABILITY OF MAKER HEREUNDER, HOLDER MAY
EXTEND ANY MATURITY DATE OR THE TIME FOR PAYMENT OF ANY INSTALLMENT DUE
HEREUNDER, ACCEPT SECURITY, RELEASE ANY PARTY LIABLE HEREUNDER AND RELEASE ANY
SECURITY NOW OR HEREAFTER SECURING THIS NOTE. MAKER FURTHER WAIVES, TO THE FULL
EXTENT PERMITTED BY LAW, THE RIGHT TO PLEAD ANY AND ALL STATUTES OF LIMITATIONS
AS A DEFENSE TO ANY DEMAND ON THIS NOTE, OR ON ANY DEED OF TRUST, PLEDGE
AGREEMENT, LEASE ASSIGNMENT, GUARANTY OR OTHER AGREEMENT NOW OR HEREAFTER
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SECURING THIS NOTE. MAKER ALSO EXPRESSLY AND UNCONDITIONALLY WAIVES, IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY HOLDER ON THIS NOTE,
ANY AND EVERY RIGHT IT MAY HAVE TO (I) INJUNCTIVE RELIEF, (II) A TRIAL BY JURY,
(III) INTERPOSE ANY COUNTERCLAIM THEREIN AND (IV) HAVE THE SAME CONSOLIDATED
WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING HEREIN CONTAINED
SHALL PREVENT OR PROHIBIT MAKER FROM INSTITUTING OR MAINTAINING A SEPARATE
ACTION AGAINST HOLDER WITH RESPECT TO ANY ASSERTED CLAIM.
11. Attorneys' Fees.
If this Note is not paid when due or if any Event of Default
occurs, Maker promises to pay all costs of enforcement and collection, including
but not limited to, Holder's reasonable attorneys' fees, whether or not any
action or proceeding is brought to enforce the provisions hereof. Upon demand by
Holder, Maker shall also pay the reasonable fees and expenses of Holder's
counsel incurred in connection with the preparation of this Note and the Pledge
Agreement.
12. Severability.
Every provision of this Note is intended to be severable. In the
event any term or provision hereof is declared by a court of competent
jurisdiction, to be illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the balance of the terms and
provisions hereof, which terms and provisions shall remain binding and
enforceable.
13. Interest Rate Limitation.
It is the intent of Maker and Holder in the execution of this Note
and all other instruments securing this Note that the loan evidenced hereby
comply with the usury laws of the State of California. Holder and Maker
stipulate and agree that none of the terms and provisions contained herein shall
ever be construed to create a contract for use, forbearance or detention of
money requiring payment of interest at a rate in excess of the maximum interest
rate permitted to be charged by the laws of the State of California. In such
event, if any Holder of this Note shall collect monies which are deemed to
constitute interest which would otherwise increase the effective interest rate
on this Note to a rate in excess of the maximum rate permitted to be charged by
the laws of the State of California, all such sums deemed to constitute interest
in excess of such maximum rate shall, at the option of Holder, be credited to
the payment of the sums due hereunder or returned to Maker.
14. Number and Gender.
In this Note the singular shall include the plural and the
masculine shall include the feminine and neuter gender, and vice versa, if the
context so requires.
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15. Headings.
Headings at the beginning of each numbered Paragraph of this Note
are intended solely for convenience and are not to be deemed or construed to be
a part of this Note.
16. Choice of Law.
This Note shall be governed by and construed in accordance with the
law of the State of California.
IN WITNESS WHEREOF, Maker has executed this Promissory Note as of
the date first above written.
GALAXY ENTERPRISES, INC.,
a Nevada corporation
By: /s/ Xxxx X. Xxxxxxx
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Name:
Title:
/s/ Xxxx X. Xxxxxxx
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XXXX X. XXXXXXX, in his individual capacity
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