EXHIBIT 10.1
PROMISSORY NOTE
$229,164.77 July 31, 2002
Norcross, Georgia
FOR VALUE RECEIVED, the undersigned, Videoconferencing Systems, Inc.,
a Delaware corporation ("VS") and Simtrol, Inc., a Delaware corporation f/k/a
VSI Enterprises, Inc. ("Simtrol") (VS and Simtrol are jointly and severally
referred to herein as "Borrower") jointly and severally promise to pay to the
order of AMB Property, L.P., a Delaware limited partnership (herein the
"Lender" and, along with each subsequent holder of this Note, referred to as
the "Holder"), the principal sum of TWO HUNDRED TWENTY-NINE THOUSAND ONE
HUNDRED SIXTY-FOUR AND 77/100 DOLLARS ($229,164.77), plus interest on the
outstanding principal balance of this Note from the date hereof until fully
paid at a simple interest rate of twelve percent (12%) per year, as hereinafter
provided.
This Note shall be payable in thirty-four (34) consecutive monthly
installments of principal in the amount of $6,740.14 each, commencing on the
1st day of November, 2002, and continuing on the 1st day of each successive
month thereafter until paid. If Borrower makes all such payments without an
occurrence of a Default (defined below), then Holder shall waive all accrued
interest otherwise due pursuant to this Note.
If Holder does not receive from Borrower any installment of principal
on the date it is due and within five (5) days after Xxxxxx sends Borrower
notice of default, then Borrower shall be in default of this Note ("Default"),
and Holder shall have the right to declare the unpaid principal and accrued and
unpaid interest on this Note to be forthwith due and payable.
All notices to Borrower shall be sent to 0000 Xxxxxxxx Xxxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxx 00000. All notices to Lender shall be sent to c/o
Xxxxxxxx Xxxx Company, Five Concourse Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000. Xxxxxxxx and Xxxxxx may each change their respective notice addresses by
providing notice of the change to the other party. All notices under this Note
must be in writing and must either be personally delivered or sent by certified
mail return receipt requested or overnight delivery. Any notice personally
delivered shall be deemed received on the date of delivery. Any notice sent by
mail or overnight delivery shall be deemed received on the date such notice is
deposited in the mail or with an overnight delivery carrier. All payments under
this Note shall only be deemed made on the date that good funds are received by
the payee.
The principal hereof and, if applicable, interest hereon shall be
payable in lawful money of the United States of America, to the Lender at
Lender's notice address. The Borrower may prepay this Note (to include all
accrued interest, if applicable because Borrower is in Default, through the
date of payment) in whole or in part at any time without notice to Holder. All
payments hereunder received from the Borrower by the Holder shall be applied
first to interest to the extent then accrued and payable, and then to
principal, all in inverse order of maturity. Such a partial prepayment shall
not affect the monthly payments due hereunder except to the extent that the
payment shall be reduced accordingly. All parties liable for the payment of
this Note agree to pay the Holder hereof an amount equal to ten percent (10%)
of the principal and interest outstanding as attorneys' fees for the services
of counsel employed to collect this Note, whether or not suit be brought, and
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whether incurred in connection with collection, trial, appeal, or otherwise,
and to indemnify and hold the Holder harmless against liability for the payment
of state intangible, documentary and recording taxes, and other taxes
(including interest and penalties, if any) which may be determined to be
payable with respect to this transaction.
In no event shall the amount of interest due or payable hereunder
exceed the maximum rate of interest allowed by applicable law.
The remedies of the Holder as provided herein or by any applicable law
shall be cumulative and concurrent and may be pursued singly, successively, or
together, at the sole discretion of the Holder, and may be exercised as often
as occasion therefore shall arise.
No act of omission or commission of the Holder, including specifically
any failure to exercise any right, remedy, or recourse, shall be effective
unless set forth in a written document executed by the Holder, and then only to
the extent specifically recited therein. A waiver or release with reference to
one event shall not be construed as continuing, as a bar to, or as a waiver or
release of any subsequent right, remedy, or recourse as to any subsequent
event.
The Borrower and all sureties, endorsers, and guarantors of this Note
hereby (a) waive demand, presentment of payment, notice of nonpayment, protest,
notice of protest and all other notice, filing of suit, and diligence in
collecting this Note, or in enforcing any of its rights under any guaranties
securing the repayment hereof; (b) agree to any substitution, addition, or
release of any collateral or any party or person primarily or secondarily
liable hereon; (c) agree that the Holder shall not be required first to
institute any suit, or to exhaust his, their, or its remedies against the
Borrower or any other person or party to become liable hereunder, or against
any collateral in order to enforce payment of this Note; (d) consent to any
extension, rearrangement, renewal, or postponement of time of payment of this
Note and to any other indulgence with respect hereto without notice, consent,
or consideration to any of them; and (e) agree that, notwithstanding the
occurrence of any of the foregoing (except with the express written release by
the Holder or any such person), they shall be and remain jointly and severally,
directly and primarily, liable for all sums due under this Note.
Whenever used in this Note, the words "Borrower" and "Holder" shall be
deemed to include the Borrower and the Holder named in the opening paragraph of
this Note, and their respective heirs, executors, administrators, legal
representatives, successors, and assigns. It is expressly understood and agreed
that the Holder shall never be construed for any purpose as a partner, joint
venturer, co-principal, or associate of the Borrower, or of any person or party
claiming by, through, or under the Borrower in the conduct of their respective
businesses.
Time is of the essence of this Note.
This Note shall be construed and enforced in accordance with the laws
of the State of Georgia, without regard to that state's conflicts of law.
The pronouns used herein shall include, when appropriate, either
gender and both singular and plural, and the grammatical construction of
sentences shall conform thereto.
All references herein to any document, instrument, or agreement shall
be deemed to refer to such document, instrument, or agreement as the same may
be amended, modified, restated, supplemented, or replaced from time to time.
IN WITNESS WHEREOF, the undersigned have executed this instrument
under seal as of the day and year first above written.
BORROWER:
VIDEOCONFERENCING SYSTEMS, INC., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
[corporate seal]
SIMTROL, INC., a Delaware corporation f/k/a
VSI Enterprises, Inc.
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
[corporate seal]
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