EXHIBIT 10.4
SECURED PROMISSORY NOTE
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$550,000.00 Osprey, Florida
March 12, 1997
FOR VALUE RECEIVED, the undersigned, INTRATEL ACQUISITION COMPANY,
INC., a Delaware corporation ("Maker"), hereby promises to pay to the order
of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, or any subsequent holder ("Holder") of this Secured
Promissory Note (this "Note"), at ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as Holder may from time
to time designate in writing, the principal sum of Five Hundred Fifty
Thousand Dollars ($550,000.00) together with all accrued interest on the
unpaid balance of this Note and all other costs and expenses provided for
herein, in accordance with the terms and provisions hereof. The
indebtedness evidenced by this Note is referred to as the "Loan".
1. PRINCIPAL AND INTEREST. Interest on the unpaid principal balance
outstanding hereon from time to time shall accrue from and after the date
hereof at a rate equal to the applicable Federal rate (as such term is
defined under Section 1274(d) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder) for short-term instruments in
effect as of the date hereof. The entire unpaid balance hereof, together
with all accrued but unpaid interest thereon and all other charges provided
for herein, shall be due and payable in full on June 30, 1997 (the
"Maturity Date").
2. REPAYMENT. All payments by Maker hereunder shall be applied (i)
first to any amount due to Holder pursuant to Paragraphs 4 and 9 of this
Note, (ii) then to the interest due and unpaid under this Note and (iii)
thereafter to any principal owing under this Note.
3. PREPAYMENT. Maker shall have the right to prepay in part or in
full, without penalty, this Note (together with accrued interest to the
date of prepayment on the amount of principal thus prepaid) at any time or
times.
4. LATE PAYMENT CHARGE. If any payment due hereunder, including,
but not limited to, any final payment, is not received by Holder within ten
(10) calendar days after its due date, Maker shall pay a late payment
charge equal to five percent (5%) of the amount then due (including both
principal and interest).
5. DEFAULT INTEREST RATE. Upon a default in the payment of any sum
due hereunder, ▇▇▇▇▇▇, in ▇▇▇▇▇▇'s sole and absolute discretion and without
notice or demand, may raise the rate of interest accruing on the unpaid
principal balance hereof by three (3)
percentage points above the rate of interest otherwise applicable,
independent of whether Holder elects to accelerate the unpaid principal
balance as a result of such default. If judgment is entered against Maker
on this Note, the amount of the judgment entered (which may include
principal, interest, fees and costs) shall bear interest at the default
interest rate described in this paragraph, to be determined on the date of
the entry of the judgment.
6. WAIVER REGARDING NOTICE. Maker and any endorsers or guarantors
of this Note severally waive presentment, demand and presentation for
payment, notice of nonpayment and dishonor, protest and notice of protest,
or any other notices of whatever kind or nature, bringing of suit and
diligence in taking any action to collect any sum owing hereunder. From
time to time, without in any way affecting the obligation of Maker to pay
the outstanding principal balance of this Note and any interest accrued
thereon and fully to observe and perform the covenants and obligations of
Maker under this Note, without affecting the duties and obligations of any
endorser hereto, without affecting the duties and obligations of any
guarantor hereof, without giving notice to or obtaining the consent of
Maker or any endorsers hereto or guarantor hereof and without liability on
the part of Holder, the Holder may, at its option, (i) extend the time for
payment of interest hereon and/or principal hereof, (ii) reduce the
payments hereunder, (iii) release anyone liable on this Note, (iv) accept
a renewal of this Note, (v) modify the terms and/or time of payment of this
Note, (vi) join in any extension or subordination, (vii) exercise any right
or election hereunder, and/or (viii) modify the rate of interest or period
of amortization or principal due date of this Note. No one or more of such
actions shall constitute a novation or operate to release any party liable
for this Note, either as Maker, endorser, guarantor or otherwise.
7. EVENTS OF DEFAULT. Each of the following shall constitute an
"Event of Default" hereunder:
(a) Maker's failure to make any required payment of principal
and/or interest under this Note on or before the date such payment is due
hereunder; or
(b) Maker's failure to pay or perform any other obligation (other
than that described in Paragraph 7(a) above) required under this Note, and
such failure continues for a period of ten (10) days after Maker's receipt
of written notice from Holder of such failure; or
(c) The occurrence of any event of default or default under
(i) that certain Stock Purchase Agreement between Maker, ▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇ of even date herewith (the "Stock Purchase Agreement"), (ii) that
certain Security Agreement between Maker, ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ of even
date herewith (the "Security Agreement"), (iii) that certain Pledge
Agreement between Maker, ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ of even date herewith (the
"Pledge Agreement"), (iv) any other document evidencing or securing the
Loan or (v) that certain Promissory Note of even date herewith from Maker
to ▇▇▇▇▇ ▇▇▇▇▇▇ or any other
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document relating to or securing the debt evidenced by such note
(collectively, the Security Documents").
8. REMEDIES. Upon the occurrence of an Event of Default, Holder
shall have the right to cause the entire unpaid principal balance hereof,
together with all accrued interest thereon, attorneys' fees and all fees,
charges, costs and expenses, if any, owed by Maker to Holder hereunder, to
become immediately due and payable in full by giving written notice to
Maker. Upon the occurrence of an Event of Default, Holder may avail itself
of any and all legal and equitable rights and remedies which Holder may
have at law or in equity or under this Note or any other document
evidencing and/or securing the debt evidenced hereby, including, but not
limited to, the right to accelerate the indebtedness due under this Note as
described in the preceding sentence. The remedies of Holder hereof as
provided herein shall be distinct and cumulative, and may be pursued
singly, successively or together, at the sole discretion of Holder, and may
be exercised as often as occasion therefor shall arise. Failure to exercise
any of the foregoing options upon the occurrence of an Event of Default
shall not constitute a waiver of the right to exercise the same or any
other option at any subsequent time in respect of the same or any other
Event of Default, and no single or partial exercise of any right or remedy
shall preclude other or further exercise of the same or any other right or
remedy. Holder shall have no duty to exercise any or all of the rights and
remedies herein provided or contemplated. The acceptance by Holder of any
payment hereunder that is less than payment in full of all amounts due and
payable at the time of such payment shall not constitute a waiver of the
right to exercise any of the foregoing rights or remedies at that time, or
nullify any prior exercise of any such rights or remedies without the
express written consent of ▇▇▇▇▇▇.
9. EXPENSES OF COLLECTION. Should this Note be referred to an
attorney for collection after an Event of Default, whether or not suit has
been filed or any other action instituted or taken to enforce or collect
under this Note, Maker shall pay all of Holder's costs, fees (including
attorneys' fees) and expenses in connection with such referral and
enforcement.
10. GOVERNING LAW. The provisions of this Note shall be governed and
construed according to the internal laws of the State of Florida (without
regard to its laws relating to choice or conflicts-of-law). Should any
provision of this Note require judicial interpretation, it is agreed that
the court interpreting or considering the same shall not apply the
presumption that the terms hereof shall be more strictly construed against
any party by reason of the rule or conclusion that a document should be
construed more strictly against the party who itself or through its agent
prepared the same, it being agreed that all parties hereto have
participated in the preparation of this Note and that legal counsel was
consulted by each party hereto before the execution of this Note.
11. CONSENT TO JURISDICTION. Maker irrevocably submits to the
jurisdiction and venue of any state or Federal court sitting in the State
of Florida over any suit, action or proceeding arising out of, or relating
to, this Note. Maker irrevocably waives, to the fullest
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extent permitted by law, any objection that Maker may now or hereafter have
to the venue of any such suit, action or proceeding brought in any such
jurisdiction. ▇▇▇▇▇ agrees to stipulate in any future proceeding that this
Note is to be considered for all purposes to have been executed and
delivered within the geographical boundaries of the State of Maryland, even
if it was, in fact, executed and delivered elsewhere.
12. WAIVER. Neither any course of dealing by Holder nor any failure
or delay on its part to exercise any right, power or privilege hereunder
shall operate as a waiver hereof unless said waiver is in writing and
signed by ▇▇▇▇▇▇, and then only to the extent specifically set forth in
said writing. A waiver as to one event shall not be construed as a
continuing waiver or as a bar to, or waiver of, any right or remedy as to
any subsequent event. Maker hereby waives the benefit of the Homestead
exemption as to the debts, obligations and covenant imposed by this Note
and/or the Assignment.
13. MODIFICATION. This Note may not be changed orally, but only by
an agreement in writing, signed by the party against whom any change,
modification or discharge is sought.
14. NOTICES. All notices hereunder shall be in writing and shall
either be hand-delivered with receipt therefor or sent by Federal Express
or Express Mail or any similar delivery service with guaranteed overnight
delivery or by certified mail, postage prepaid, return receipt requested,
as follows:
(i) If to Maker:
IntraTel Acquisition Company, Inc.
The Oaks
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇, Chairman
(ii) If to Holder
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Notices shall be effective when received; provided, that if any notice sent
by certified mail is properly returned as undeliverable, said notice shall
be effective when mailed. Any party may change the address to which notices
are to be delivered hereunder by giving written notice to the other party
as provided in this Paragraph 15.
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15. ASSIGNMENT. Holder may assign or otherwise transfer this Note and
any other document pertaining to the Loan at any time or from time to time.
16. SEVERABILITY. In the event any one or more of the provisions
contained in this Note shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall, at the option of Holder hereof, not affect any
other provision of this Note and this Note shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein.
17. LIMITATIONS OF APPLICABLE LAW. In the event the operation of any
provision hereof results in an effective rate of interest transcending the
limit of the usury or any other law applicable to the loan evidenced
hereby, all sums in excess of those lawfully collectible as interest for
the period in question shall, without further agreement or notice between
or by any party to this Note, be applied to the unpaid principal balance of
this Note immediately upon receipt of such monies by Holder, with the same
force and effect as though Maker had specifically designated such extra
sums to be so applied to the unpaid principal balance and Holder hereof had
agreed to accept such extra payment(s) as a prepayment.
18. CAPTIONS. The captions herein are for convenience of reference
only and in no way defined or limit the scope or content of this Note or in
any way affect its provisions.
19. DEBTOR-CREDITOR RELATIONSHIP. Holder shall in no event be
construed for any purpose to be a partner, joint venturer or associate of
Maker, it being the sole intention of the parties to establish a
relationship of debtor and creditor.
20. TIME OF ESSENCE. It is expressly agreed that time is of the
essence in the performance of the obligations set forth in this Note.
21. SECURITY. Payment of this Note is secured by the "Security
Documents," as defined in the Assignment, the terms and provisions of which
are incorporated herein and made a part hereof.
22. GENDER AND NUMBER. Feminine or neuter pronouns shall be
substituted for those of the masculine form, and the plural shall be
substituted for the singular number, in any place or places in which the
context may require such substitution.
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IN WITNESS WHEREOF, ▇▇▇▇▇ has executed this Promissory Note
specifically intending this Note to constitute an instrument under seal as
of the date set forth above pursuant to due authority.
Maker:
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INTRATEL ACQUISITION COMPANY, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
Title: Chairman
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) TO WIT:
I HEREBY CERTIFY that on this 12th day of March, 1997, before me, the
undersigned Notary Public of the aforesaid jurisdiction, personally
appeared ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇, Chairman of IntraTel Acquisition Company, Inc.
(the "Corporation"), a Delaware corporation, who acknowledged that he
executed the foregoing instrument on behalf of the Corporation for the
purpose therein contained.
IN WITNESS MY Hand and Notarial Seal.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Notary Public
My commission expires:__________________
[Notarial Seal]