PROMISSORY NOTE
June 29, 1999
(Date)
000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxx, XX 00000
________________________________________________________________________
FOR VALUE RECEIVED, Plymouth Rubber Company, Inc. ("Maker") promises, jointly
and severally if more than one, to pay to the order of Andover Capital Group,
Inc. or any subsequent holder hereof (each, a "Payee") at its office located
at 000 Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000 or at such other place as Payee or
the holder hereof may designate, the principal sum of Eight hundred sixty seven
thousand seven hundred forty-three and 00/100 Dollars ($867,743.00 ), with
interest thereon, from the date hereof through and including the dates of
payment, at a fixed interest rate of Eight and 39/100 percent (8.39%) per
annum, to be paid in lawful money of the United States, in fifty nine (59)
consecutive monthly installments of principal and interest of Seventeen
thousand seven hundred fifty-seven and 11/100 ($17,757.11) ("Periodic
Installment") and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due
and payable on July 31, 1999 and the following Periodic Installments and the
final installment shall be due and payable on the same day of each succeeding
month (each, a "Payment Date"). Such installments have been calculated on the
basis of a 360 day year of twelve 30-day months. Each payment may, at the
option of the Payee, be calculated and applied on an assumption that such
payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of
all amounts due and owing at such time shall not constitute a waiver of Payee's
right to receive payment in full at such time or at any prior or subsequent
time.
The Maker hereby expressly authorizes the Payee to insert the date value is
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.
This Note is secured by Collateral Schedule No. A-2 to Master Security Agreement
dated January 27, 1997 ("Security Agreement.")
Time is of the essence hereof. If any installment or any other sum due under
this Note or any Security Agreement is not received within ten (10) days after
its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the
amount of said installment or other sum, but not exceeding any lawful maximum.
If (i) Maker fails to make payment of any amount due hereunder within ten (10)
days after the same becomes due and payable; or (ii) Maker is in uncured or
unwaived default under, or fails to perform under any term or condition
contained in any Security Agreement, then the entire principal sum remaining
unpaid, together with all accrued interest thereon and any other sum payable
under this Note or any Security Agreement, at the election of Payee, shall
immediately become due and payable, with interest thereon at the lesser of
twelve percent (12%) per annum or the highest rate not prohibited by applicable
law from the date of such accelerated maturity until paid (both before and
after any judgment).
The Maker may prepay in full, but not in part, its entire indebtedness hereunder
upon payment of an additional sum as a premium equal to the following
percentages of the original principal balance for the indicated period:
Prior to the third annual anniversary date of this Note: three percent (3%)
Thereafter and prior to the fifth annual anniversary date of this Note: two
percent (2%)
Thereafter and prior to the tenth annual anniversary date of this Note: one
percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under
any Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury
laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note
or any Security Agreement require the payment or permit the collection of
interest in excess of the maximum amount permitted by applicable law. If any
such excess interest is contracted for, charged or received under this Note or
any Security Agreement, or if all of the principal balance shall be prepaid,
so that under any of such circumstances the amount of interest contracted for,
charged or received under this Note or any Security Agreement on the principal
balance shall exceed the maximum amount of interest permitted by applicable
law, then in such event (a) the provisions of this paragraph shall govern and
control, (b) neither Maker nor any other person or entity now or hereafter
liable for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest
permitted by applicable law, (c) any such excess which may have been collected
shall be either applied as a credit against the then unpaid principal balance
or refunded to Maker, at the option of the Payee, and (d) the effective rate
of interest shall be automatically reduced to the maximum lawful contract rate
allowed under applicable law as now or hereafter construed by the courts having
jurisdiction thereof. It is further agreed that without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received under this Note or any Security Agreement which are made for the
purpose of determining whether such rate exceeds the maximum lawful contract
rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the
full stated term of the indebtedness evidenced hereby, all interest at any time
contracted for, charged or received from Maker or otherwise by Payee in
connection with such indebtedness; provided, however, that if any applicable
state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a
greater interest per annum rate than is presently allowed, the Maker agrees
that, on the effective date of such amendment or preemption, as the case may
be, the lawful maximum hereunder shall be increased to the maximum interest per
annum rate allowed by the amended state law or the law of the United States
of America.
The Maker and all sureties, endorsers, guarantors or any others (each such
person, other than the Maker, an "Obligor") who may at any time become liable
for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions
or releases of, security or of any party primarily or secondarily liable on this
Note or any Security Agreement or any term and provision of either, which may
be made, granted or consented to by Xxxxx, and agree that suit may be brought
and maintained against any one or more of them, at the election of Xxxxx
without joinder of any other as a party thereto, and that Payee shall not be
required first to foreclose, proceed against, or exhaust any security hereof
in order to enforce payment of this Note. The Maker and each Obligor hereby
waives presentment, demand for payment, notice of nonpayment, protest, notice
of protest, notice of dishonor, and all other notices in connection herewith,
as well as filing of suit (if permitted by law) and diligence in collecting
this Note or enforcing any of the security hereof, and agrees to pay (if
permitted by law) all expenses incurred in collection, including Payee's
reasonable attorneys' fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR
TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY
RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and any Security Agreement constitute the entire agreement of the
Maker and Payee with respect to the subject matter hereof and supercedes all
prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by
an authorized representative of Maker and Payee. Any such waiver, consent,
modification or change shall be effective only in the specific
instance and for the specific purpose given.
Any provision in this Note or any Security Agreement which is in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
Plymouth Rubber Company, Inc.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx (L.S.)
(Witness) (Signature)
Xxxxxx X. Xxxxx Xxxxxx X. Xxxxx
(Print name) Print name (and title, if applicable)
000 Xxxxxx Xx., Xxxxxx, XX 00000 00-0000000
(Address) (Federal tax identification number)
i:\sec\dle\plymprom.doc
