EXHIBIT 10.5
AMENDED AND RESTATED
NON-NEGOTIABLE
NOTE
$2,078,220.00
As of January 17, 1997
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, XXXXXXX HEALTHCARE, INC., a Delaware
corporation (the "Maker"), promises to pay to the order of XXXXXXX CAPITAL
COMPANY L.L.C., a Delaware limited liability company ("Holder"), the principal
sum of TWO MILLION SEVENTY EIGHT THOUSAND TWO HUNDRED AND TWENTY DOLLARS
($2,078,220.00) and all interest accrued thereon, in lawful money of the United
States of America in immediately available funds on December 1, 2001 (the
"MATURITY DATE") and such other earlier dates provided in this note (the
"NOTE").
The Note is an amendment and restatement of an existing promissory note of
Maker to Holder dated as of January 17, 1997 in original principal amount of
$2,128,220.00. This Note is issued on the following terms, to which Xxxxxx
agrees, and Maker, for itself and its successors, covenants and agrees as
follows:
1. OPTIONAL AND MANDATORY PAYMENTS. This Note may be prepaid in whole or
in part at any time without premium or penalty. Maker shall make a payment to
Holder of principal and interest in the amount of Forty Five Thousand Thirty
Dollars ($45,030.00) on January 1, 1997 and Forty-Four Thousand Four Hundred
Thirty-Seven Dollars ($44,437.00) on February 1, 1997, and thereafter shall make
payments to Holder in fifty-six (56) equal consecutive monthly installments,
each in the amount of Forty-Three Thousand Four Hundred Eight Dollars
($43,408.00) each payable on the 1st day of the calendar month (each such date
being hereinafter referred to as an "INSTALLMENT DATE"), commencing February 1,
1997. The entire remaining outstanding principal balance hereunder, together
with all accrued and unpaid interest thereon, shall be due and payable in full
on the Maturity Date. Except as otherwise provided herein, each payment when
paid shall be applied first to the payment of interest accrued on the unpaid
principal and the residue thereof shall be credited on the principal.
2. INTEREST PAYABLE ON THE NOTE. The entire unpaid principal of the Note
shall bear interest from and after the date of the Note until payment or
prepayment in full of the unpaid principal amount thereof at the floating rate
of prime as published by SunTrust Bank of Atlanta. Such floating rate shall be
adjusted quarterly on the first (1st) day of the calendar quarter, commencing
April of 1997, using the prime rate in effect on the twenty-fifth (25th) day of
the preceding calendar month. The initial interest rate shall be 8.25%.
Interest on all amounts that are not paid within fifteen (15) days of the due
date (whether by acceleration, prepayment, passage of time, or otherwise) shall
bear interest for each day that such amounts are overdue at a rate of fourteen
percent (14%) per annum (the "Default Rate).
3. CHOICE OF LAW; COMPUTATIONS; BUSINESS DAYS. This Note has been
executed and delivered in Atlanta, Georgia and shall be construed in accordance
with and governed by the internal laws of the State of Georgia without
references to principles of conflict of laws. Whenever any payment is to occur
under this Note on a date which is not a Business Day, such payment shall be
required to occur on the next succeeding Business Day and such extension shall
be included in the computation of interest in connection with any such payment.
For purposes of this Section, "BUSINESS DAY" shall mean any day other than a
Saturday, Sunday, or other day on which commercial banks in Atlanta, Georgia,
are authorized or required by law to close.
4. DEFENSES. The right to plead any and all statutes of limitations as a
defense to demand hereunder is hereby waived to the extent permitted by law.
The Maker, for itself and its successors and assigns, waives presentment,
demand, protest and notice thereof or of dishonor, and waives the right to be
released by reason of any extension of time or change in the terms of payment.
5. EVENTS OF DEFAULT. If any one of the following events occurs and is
continuing:
(a) Maker fails to make any payment of principal and interest on this
Note when due, which failure shall continue without cure for thirty (30)
days after written notice of such failure has been delivered to Maker; or
(b) in the event of any sale of substantially all of Maker's assets,
the person or other entity acquiring substantially all of the assets of
Maker fails to either (i) deliver to Holder, prior to the consummation of
such asset purchase a certificate, signed by its Chief Executive Officer,
agreeing to assume, upon the effectiveness of such consummation, the
obligations of Maker under this Note; or (ii) pay to Holder the entire
amount of the unpaid principal and interest due and owing under the Note;
or
(c) Maker, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in an involuntary case, (iii) consents to the appointment
of a Custodian of it or for all or substantially all of its property (iv)
makes a general assignment for the benefit of its creditors, or (v)
generally is unable to pay its debts as the same become due; or
(d) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (i) is for relief against the Maker in an
involuntary case, (ii) appoints a Custodian of the Maker for all or
substantially all of its property, or (iii) orders the liquidation of the
Maker, and the order or decree referred to in clauses (i) through (iii)
hereof remains undismissed or unstayed for a period of sixty (60) days; or
(e) An Event of Default shall occur under the Amended and Restated
Stock Pledge Agreement, of even date herewith (the "Stock Pledge
Agreement"), as provided in Section 4 of such Agreement;
then, and in any such event, the unpaid principal amount of this Note, together
with accrued but unpaid interest thereon, shall become immediately due and
payable, without presentment, diligence, demand, protest or other notice of any
kind. The term "BANKRUPTCY LAW" means Title 11, United States Code or any
similar federal or state law for the relief of debtors. The term "CUSTODIAN"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law. The term "sale of substantially all of Maker's assets" shall
mean the sale of assets from which Maker derives 90 percent or more of its total
revenues.
Nothing contained herein shall prevent Maker from participating in any
merger, consolidation or other business combination (whether or not Maker is the
surviving entity) so long as the surviving entity in such merger, consolidation
or business combination either (i) expressly assumes all of the obligations of
Maker contained hereunder, including, without limitation, the obligation to
deliver the certificate referred to in clause (b) of the preceding paragraph; or
(ii) pays to Holder the entire amount of the unpaid principal and interest due
and owing under the Note.
6. SUBORDINATION.
(a) Certain defined terms. For purposes hereof:
(i) "Senior Indebtedness" means (1) all future and
past indebtedness, liabilities and obligations of Maker (A) for
money borrowed, including, without limitation, all principal,
interest (including, without limitation, any interest accruing
after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of
Maker), premium upon prepayment and related fees and expenses,
and (B) in respect of any guarantees of the indebtedness,
liabilities and obligations described in the preceding clause
(A); and (2) all future and past deferrals, renewals, extensions
and refundings of, or amendments, modifications or supplements
to, any of the foregoing; PROVIDED, HOWEVER, that the term
"Senior Indebtedness" shall not include any indebtedness,
liabilities or obligations of Maker which are owed to any Related
Party. For purposes hereof, the term "Related Party" means any
trade creditor or wholly-owned subsidiary of Maker, or any
corporation, partnership or other person or entity controlling,
or under common control with Maker or any officer or director of
Maker.
(ii) "Subordinated Indebtedness" means, following the
occurrence of an Event of Default and foreclosure on the
collateral pledged pursuant to the Stock Pledge Agreement, (1)
the outstanding balance of any deficiency on the indebtedness,
liabilities and obligations of Maker arising under, or evidenced
by, this Note and the Stock
Pledge Agreement, whether for the payment of principal, interest,
premium or otherwise, and including, without limitation, all
obligations of Maker (A) to pay interest accruing on the Note
after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of maker
or (B) to make any prepayments under the Note or to make any
payments on account of any repurchase or other acquisition of the
Note; and (ii) all deferrals, renewals, extensions and refundings
of, or amendments, modification or supplements to, any of the
foregoing.
(b) Subordination. Following the occurrence of an Event of
Default and foreclosure of the collateral pledged pursuant to the
Stock Pledge Agreement, the Subordinated Indebtedness shall at all
times be wholly subordinate and junior to the Senior Indebtedness.
7. STOCK PLEDGE AGREEMENT. The indebtedness evidenced by this Note and
the obligations created herein are secured by the Stock Pledge Agreement, the
terms and conditions of which are hereby incorporated herein by this reference.
8. ATTORNEYS FEES; REMEDIES. If this Note is placed in the hands of an
attorney for collection, or if collected by suit or through probate, bankruptcy,
or other court proceedings, the undersigned agrees to pay Holder reasonable
costs of such collection, including reasonable attorney's fees. No delay or
failure by Holder in the exercise of any right or remedy shall constitute a
waiver thereof, and no single or partial exercise by the holder hereof of any
right or remedy shall preclude other or future exercise thereof or the exercise
or any other right or remedy.
9. USURY LIMITATION. Notwithstanding anything herein to the contrary, in
no event shall any interest be payable under this Note which exceeds the maximum
amount permitted by applicable law.
10. EFFECTIVE DATE. The effective date of this Note shall be December 1,
1996.
11. ASSIGNABILITY. This Note shall not be assigned, pledged or otherwise
transferred by the Holder hereof except (i) to Xxxxxx X. Xxxxxxx, III, Xxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxx Xxxxxx or to any Holder's father,
mother, sisters, brothers, spouse or children or (ii) with the prior written
consent of Maker.
12. NEGOTIABILITY. This Note does not constitute a negotiable instrument
governed by O.C.G.A. Section 11-3-101 ET. SEQ.
[13. TIME. Time is of the essence of this Note.
14. INTENT OF PARTIES. Except as expressly modified and amended as herein
provided, the Note and the Pledge Agreement are and shall remain in full force
and effect. This Agreement is not intended to be nor shall it constitute a
novation of the Pledge Agreement or the indebtedness secured thereby. Maker
hereby ratifies, confirms and approves the Note and the Pledge Agreement as
modified herein, and agrees that the same constitute valid and binding
agreements of Maker, enforceable by Holder in accordance with their terms.
IN WITNESS WHEREOF, this Note has been duly executed and the Maker has
affixed its seal hereto, all of the day and year first set forth above.
"Maker"
XXXXXXX HEALTHCARE, INC.
By: /S/XXXXXX X. XXXXXXX, XX.
---------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Chairman and CEO
[(Corporate Seal)]
