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Exhibit 10.80
PROMISSORY NOTE
$________________ December 5, 1997
FOR VALUE RECEIVED, the undersigned, Intelect Communications, Inc.
("Maker"), a Delaware corporation, unconditionally hereby promises to pay to
the order of Xxxxx Xxxxxxx at its business office in Xxxxxxxxxx, Xxxxxx County,
Texas, or at such other place as the holder of this note may hereafter
designate, the principal sum of ______________________ Dollars ($____________)
in lawful money of the United States of America for the payment of private
debts, together with interest (calculated on the basis of the actual number of
days elapsed but computed as if each year consisted of 365 days) on the unpaid
principal balance from time to time owing hereon computed from the date hereof
until maturity at a per annum rate which from day to day shall be, except as
otherwise provided in this note, the lesser of (a) the Loan Rate (as
hereinafter defined) or (b) the Highest Lawful Rate (hereafter defined) in
effect from day to day. The term "Loan Rate" shall mean the sum of three
percent (3%) and the Prime Rate (hereinafter defined) in effect from day to
day. The term "Prime Rate" shall mean as to any day the "Prime Rate" as
published in The Wall Street Journal for that day in the "Money Rates" table.
All past-due principal and interest, whether by acceleration or
otherwise, shall bear interest at the Loan Rate until paid.
The interest on this Note shall be due and payable monthly on the 1st
day of each month. The principal on this Note shall be payable on demand. At
the election of the holder of this Note, at any time prior to the Note being
repaid by the Maker, the holder may send notice to the Maker electing to have
the Note repaid in the form of Common Stock of the Maker, at a price equal to
$5.25 per share for every dollar of principal and interest outstanding on the
Note as of the date of repayment; provided, however, that the holder executes
such documentation as Maker's counsel shall deem necessary for compliance with
federal and state securities laws in the issuance of such Common Stock.
This note may be prepaid at any time, in whole or in part, without
penalty. All payments will be applied first to accrued interest and then to
the reduction of principal.
Notwithstanding anything contained herein to the contrary, if at any
time during the term of this note the Highest Lawful Rate has been charged
Maker in lieu of the Loan Rate because the Loan Rate has exceeded the Highest
Lawful Rate on one or more days during the term of this note, and if, as a
result, on any date during the term of this note the aggregate amount of
interest which has accrued on this note up to, but not including, such date is
less than the aggregate amount of interest which otherwise would
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have accrued on this note up to, but not including, such date had the Loan Rate
been charged for every day during the term of this note up to, but not
including, such date, then on such date the unpaid principal balance of this
note shall bear interest at the Highest Lawful Rate even though the Highest
Lawful Rate is in excess of the Loan Rate for such date.
It is expressly provided and stipulated that notwithstanding any
provision of this note or any other instrument evidencing or securing the loan
herein set forth, in no event shall the aggregate of all interest paid or
contracted to be paid to Payee by Maker (or any guarantors or endorsers) ever
exceed the maximum amount of interest which may lawfully be charged the
undersigned by Payee on the principal balance of this note from time to time
advanced and remaining unpaid. In this connection, it is expressly stipulated
and agreed that it is the intent of Payee and Maker in the execution and
delivery of this note to contract in strict compliance with applicable usury
laws. In furtherance thereof, none of the terms of this note or said other
instruments shall ever be construed to create a contract to pay interest at a
rate in excess of the Highest Lawful Rate for the use, forbearance or detention
of money. The term "Highest Lawful Rate" shall mean the maximum non-usurious
rate of interest which may lawfully be charged the undersigned by Payee
according to the indicated rate ceiling as defined in Tex. Rev. Civ. Stat. Xxx.
Art. 5069-1.04 in effect at such time and which would be applicable to the
indebtedness evidenced by this note (provided that as permitted by law, Payee
or other holder may, from time to time, implement any applicable ceiling under
such Article and revise the index formula or provision of law used to compute
the rate ceiling by notice to Maker as provided by such Article) or under the
laws of the United States. The parties hereto acknowledge that the effective
date of this instrument is the date on which the indebtedness evidenced hereby
has been contracted for. In determining whether the loan evidenced by this
note is usurious under applicable law, all interest at any time contracted for,
charged, or received from Maker in connection with the loan shall be amortized,
prorated, allocated, and spread in equal parts during the period of the full
stated term of the loan. However, in the event that this note is paid in full
by Maker (or any endorser or guarantor hereof) prior to the end of the full
stated term of this note and in the event the interest received by the holder
of this note for the actual period of the existence of the loan exceeds the
Highest Lawful Rate, the holder of this note shall, at its option, either
refund to Maker the amount of such excess or credit the amount of such excess
against any amounts owing by Maker under this note. In addition, if, from any
circumstances whatsoever, fulfillment of any provision hereof or of any
instrument securing this note or of any other agreement referred to herein or
executed pursuant to or in connection with this note, at the time performance
of such provision shall be due, shall involve transcending the limit of
validity prescribed by applicable law, then, ipso facto, the obligation to
fulfill shall be reduced to the limit of such validity, and if from any
circumstance the holder there of shall ever receive as interest an amount which
would exceed the Highest Lawful Rate, such amount which would be excessive
interest shall, at the option of Payee, be refunded to Maker or be applied to
the reduction of the unpaid principal balance due hereunder and not to the
payment of interest. The provisions of this paragraph shall supersede all
other provisions of this note and all other
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instruments evidencing or securing this loan, should such provisions be in
apparent conflict herewith.
Maker agrees that Xxxxx's acceptances of partial or delinquent
payments, or failure of Payee to exercise any right or remedy contained herein
or in any instrument given as security for the payment of this note shall not
be a waiver of any obligation of Maker to Payee or constitute waiver of any
similar default subsequently occurring.
The Maker expressly agrees that in the event of default in the payment
of this note or of any installment of principal and/or interest of this note
when due (an "Event of Default"), the holder hereof shall give notice to Maker
and demand payment, and if such payment is not forthcoming within five (5)
business days of Maker's receipt of such notice, Maker may declare the
principal of this note and all interest then accrued thereon at once due and
payable. In the event default is made in the prompt payment of this note when
due or declared due, or the same is placed in the hands of an attorney for
collection, or suit is brought on same, or the same is collected through any
judicial proceeding whatsoever, or if any action of foreclosure be had hereon,
then the undersigned agrees and promises to pay the owner and holder reasonable
attorneys' fees in addition to the other amounts due hereunder.
This note may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
Except to the extent that the laws of the United States may apply to
the terms hereof, this note shall be governed by and construed in accordance
with the laws of the State of Texas. This instrument is made and is
performable in Xxxxxxxxxx, Xxxxxx County, Texas and in the event of a dispute
involving this note or any other instruments executed in connection herewith,
Maker irrevocably agrees that venue for such dispute shall be in any court of
competent jurisdiction in Dallas County, Texas.
This note and all the covenants, promises and agreements contained
herein shall be binding upon and inure to the benefit of Xxxxx's and Maker's
heirs, successors, legal representatives and assigns.
IN WITNESS WHEREOF, Maker has executed and delivered this note to
Xxxxx in Richardson, Texas, effective December 5, 1997.
Intelect Communications, Inc.
By:
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Its: Vice President
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