EXHIBIT 10.2
Bank of America
PROMISSORY NOTE
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Borrower: Procyon Corporation Lender: Bank of America. N.A.
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ FL9-100-03-15
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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Principal Amount: $508,000.00 Date of Note: July 21, 2006
PROMISE TO PAY. Procyon Corporation ("Borrower") promises to pay to Bank of
America, N.A. ("Lender"), or order, in lawful money of the United States of
America, the principal amount of Five Hundred Eight Thousand & 00/100 Dollars
($508,000.00), together with interest at the rate of 7.250% per annum on the
unpaid principal balance from July 21, 2006, until paid in full.
PAYMENT. Borrower will pay this loan in 180 payments of $4,668.41 each payment.
Borrower's first payment is due August 21. 2006, and all subsequent payments are
due on the same day of each month after that. Borrower's final payment will be
due on July 21, 2021, and will be for all principal and all accrued interest not
yet paid. Payments include principal and interest. Unless otherwise agreed or
required by applicable law, payments will be applied first to any accrued unpaid
interest; then to principal; then to any late charges; and then to any unpaid
collection costs. The annual interest rate for this Note is computed on a
365/360 basis; that is, by applying the ratio of the annual interest rate over a
year of 360 days, multiplied by the outstanding principal balance, multiplied by
the actual number of days the principal balance is outstanding. Borrower will
pay Lender at Lender's address shown above or at such other place as Lender may
designate in writing.
PREPAYMENT PENALTY. Upon prepayment of this Note, Lender is entitled to the
following prepayment penalty: Borrower may prepay up to twenty percent (20%) of
the face amount of this Note in any Annual Period without the payment of a
prepayment fee or premium. "Annual Period" means the period commencing on the
date of this Note and ending twelve (12) months thereafter, and each subsequent
twelve-month period. Prepayments in any Annual Period which exceed, in the
aggregate, twenty percent (20%) of the face amount of this Note ("Excess
Prepayments") must be accompanied by payment of a prepayment fee as follows:
During the first Annual Period, 5% of the Excess Prepayments;
During the second Annual Period, 4% of the Excess Prepayments;
During the third Annual Period, 3% of the Excess Prepayments;
During the fourth Annual Period, 2% of the Excess Prepayments;
During the fifth Annual Period, 1% of the Excess Prepayments.
No prepayment fee will be assessed after the fifth Annual Period. Partial
prepayments shall be applied to the most remote payment of principal due under
this Note. Except for the foregoing, Borrower may pay all or a portion of the
amount owed earlier than it is due. Early payments will not, unless agreed to by
Lender in writing, relieve Borrower of Borrower's obligation to continue to make
payments under the payment schedule. Rather, early payments will reduce the
principal balance due and may result in Borrower's making fewer payments.
Borrower agrees not to send Lender payments marked "paid in full", "without
recourse", or similar language. if Borrower sends such a payment, Lender may
accept it without losing any of Lender's rights under this Note, and Borrower
will remain obligated to pay any further amount owed to Lender. All written
communications concerning disputed amounts, including any check or other payment
instrument that indicates that the payment constitutes "payment in full" of the
amount owed or that is tendered with other conditions or limitations or as full
satisfaction of a disputed amount must be mailed or delivered to: Bank of
America, N.A.; CCS-Small Business/Premier; FL9-100-03-15; ▇.▇. ▇▇▇ ▇▇▇▇▇;
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged
4.000% of the unpaid portion of the regularly scheduled payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the interest rate on this Note 6.000 percentage points, if and to the
extent that the increase does not cause the interest rate to exceed the maximum
rate permitted by applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this
Note.
Other Defaults. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Note or in any of the
related documents or to comply with or to perform any term, obligation,
covenant or condition contained in any whet agreement between Lender and
Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's property or Borrower's ability
to repay this Note or perform Borrower's obligations under this Note or any
of the related documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note or
the related documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
Insolvency. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the loan. This includes
a garnishment of any of Borrower's accounts, including deposit accounts,
with Lender. However, this Event of Default shall not apply if there is a
good faith dispute by Borrower as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by Lender, in
its sole discretion, as being an adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect
to any Guarantor of any of the indebtedness or any Guarantor dies or
becomes incompetent, or revokes or disputes the validity of, or liability
under, any guaranty of the indebtedness evidenced by this Note.
PROMISSORY NOTE
(Continued)
Page 2
Change In Ownership. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of
this Note is impaired.
Insecurity. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender the amount of these
costs and expenses, which includes, subject to any limits under applicable law,
Lender's reasonable attorneys' fees and Lender's legal expenses whether or not
there is a lawsuit, including reasonable attorneys' fees and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay
or injunction), and appeals. if not prohibited by applicable law. Borrower also
will pay any court costs, in addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by either Lender or Borrower against
the other.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to
submit to the jurisdiction of the courts of any County, State of Florida.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any ▇▇▇ or ▇▇▇▇▇ accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts.
DISPUTE RESOLUTION PROVISION. This paragraph, including the subparagraphs below,
is referred to as the "Dispute Resolution Provision." This Dispute Resolution
Provision is a material inducement for the parties entering into this agreement.
(a) This Dispute Resolution Provision concerns the resolution of any
controversies or claims between the parties, whether arising in contract, tort
or by statute, including but not limited to controversies or claims that arise
out of or relate to: (i) this agreement (including any renewals, extensions or
modifications); or (ii) any document related to this agreement (collectively a
"Claim"). For the purposes of this Dispute Resolution Provision only, the term
"parties" shall include any parent corporation, subsidiary or affiliate of
Lender involved in the servicing, management or administration of any obligation
described or evidenced by this agreement.
(b) At the request of any party to this agreement, any Claim shall be resolved
by binding arbitration in accordance with the Federal Arbitration Act (Title 9,
U.S. Code) (the "Act"). The Act will apply even though this agreement provides
that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the Act, the
then-current rules and procedures for the arbitration of financial services
disputes of the American Arbitration Association or any successor thereof
("AAA"), and the terms of this Dispute Resolution Provision. In the event of any
inconsistency, the terms of this Dispute Resolution Provision shall control. If
AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii)
enforce any provision of this arbitration clause, the Lender may designate
another arbitration organization with similar procedures to serve as the
provider of arbitration.
(d) The arbitration shall be administered by AAA and conducted, unless otherwise
required by law, in any U.S. state where real or tangible personal property
collateral for this credit is located or if there is no such collateral, in the
state specified in the governing law section of this agreement. All Claims shall
be determined by one arbitrator; however, if Claims exceed Five Million Dollars
($5,000,000), upon the request of any party, the Claims shall be decided by
three arbitrators. All arbitration hearings shall commence within ninety (90)
days of the demand for arbitration and close within ninety (90) days of
commencement and the award of the arbitrator(s) shall be issued within thirty
(30) days of the close of the hearing. However, the arbitrator(s), upon a
showing of good cause, may extend the commencement of the hearing for up to an
additional sixty (601 days. The arbitrator(s) shall provide a concise written
statement of reasons for the award. The arbitration award may be submitted to
any court having jurisdiction to be confirmed and have judgment entered and
enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining
any Claim and may dismiss the arbitration on the basis that the Claim is barred.
For purposes of the application of any statutes of limitation, the service on
AAA under applicable AAA rules of a notice of Claim is the equivalent of the
filing of a lawsuit. Any dispute concerning this arbitration provision or
whether a Claim is arbitrable shall be determined by the arbitrator(s), except
as set forth at subparagraph (h) of this Dispute Resolution Provision. The
arbitrators) shall have the power to award legal fees pursuant to the terms of
this agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise
self-help remedies, such as but not limited to, setoff; (ii) initiate judicial
or non-judicial foreclosure against any real or personal property collateral;
(iii) exercise any judicial or power of sale rights, or (iv) act in a court of
law to obtain an interim remedy, such as but not limited to, injunctive relief,
writ of possession or appointment of a receiver, or additional or supplementary
remedies.
(g) The filing of a court action is not intended to constitute a waiver of the
right of any party, including the suing party, thereafter to require submittal
of the Claim to arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an
individual basis without resort to any form of class or representative action
(the "Class Action Waiver"). Regardless of anything else in this Dispute
Resolution Provision, the validity and effect of the Class Action Waiver may be
determined only by a court and not by an arbitrator. The parties to this
Agreement acknowledge that the Class Action Waiver is material and essential to
the arbitration of any disputes between the parties and is nonseverable from the
agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or
found unenforceable, then the parties' agreement to arbitrate shall be null and
void with respect to such proceeding, subject to the right to appeal the
limitation or invalidation of the Class Action Waiver. The Parties acknowledge
and agree that under no circumstances will a class action be arbitrated.
ASSIGNMENT. Lender may sell or offer to sell this Note, together with any and
all documents guaranteeing, securing or executed in connection with this Note,
to one or more assignees without notice to or consent of Borrower. Lender is
hereby authorized to share any information it has pertaining to the loan
evidenced by this Note, including without limitation credit information on the
undersigned, any of its principals, or any guarantors of this Note, to any such
assignee or prospective assignee.
COUNTERPARTS. This Note may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
PRE BILLING. If the Borrower and Lender elect to use pre-billing calculation,
for each payment date (the "Due Date") the amount of each payment debit will be
determined as follows: On the 'Billing Date" Lender will prepare and mail to
PROMISSORY NOTE
(Continued)
Page 3
Borrower an invoice of the amounts that will be due on that Due Date ("Billed
Amount"). (The "Billing Date" will be a date that is a specified number of
calendar days prior to the Due Date, which number of days will be mutually
agreed from time to time by Lender and Borrower.) The calculation of the Billed
Amount will be made on the assumption that no new extensions of credit or
payments will be made between the Billing Date and the Due Date, and that there
will be no changes in the applicable interest rate. On the Due Date Lender will
debit the Designated Account for the Billed Amount, regardless of the actual
amount due on that date ("Accrued Amount"). If the Due Date does not fall on a
Business Day, Lender shall debit the Designated Account on the first Business
Day following the Due Date. For purposes of this Agreement, "Business Day" means
a day other than Saturday, Sunday or other day on which commercial banks are
authorized to close or are in fact closed in the state where the Lender's
lending office is located. If the Billed Amount debited to the Designated
Account differs from the Accrued Amount, the difference will be treated as
follows: If the Billed Amount is less than the Accrued Amount, the Billed Amount
for the following Due Date will be increased by the amount of the underpayment.
Borrower will not be in default by reason of any such underpayment. If the
Billed Amount is more than the Accrued Amount, the Billed Amount for the
following Due Date will be decreased by the amount of the overpayment.
Regardless of any such difference, interest will continue to accrue based on the
actual amount of principal outstanding without compounding. Lender will not pay
interest on any overpayment.
AUTOMATIC PAYMENTS. Borrower hereby authorizes Lender automatically to deduct
from Borrower's account numbered 005567938115 the amount of any loan payment. If
the funds in the account are insufficient to cover any payment, Lender shall not
be obligated to advance funds to cover the payment. At any time and for any
reason, Borrower or Lender may voluntarily terminate Automatic Payments.
TERMINATION OF AUTOMATIC PAYMENTS. In the event that Borrower terminates the
Automatic Payment arrangement with Lender, Borrower agrees that the interest
rate under the Note will increase, at the discretion of the Lender, by one
percentage point (1.00%) per annum over the rate of interest stated in the Note,
and the amount of each interest installment will be increased accordingly. The
effective rate of interest under the Note shall not in any event exceed the
maximum rate permitted by law.
FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT:
(Al THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY
COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS
RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM SHEET
OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE
CONTRARY, (CI THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES, AND {D) THIS
DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
ADDITIONAL DEFAULTS. Each of the following shall constitute an additional event
of default ("Event of Default") under this Note:
Event of Default Under Related Documents. A default or event of default occurs
under the terms of any promissory note, guaranty, pledge agreement, security
agreement or other agreement or instrument executed by Borrower or any
guarantor, pledgor, accommodation party or other obligor in connection with or
relating to this Note.
Judgment. The entry of a judgment against any Borrower or guarantor, pledgor,
accommodation party or other obligor which Lender deems to be of a material
nature, in Lender's sole discretion.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower or by any governmental agency against
any assets of Borrower and/or any guarantor, pledgor, accommodation party or
other obligor. This includes a garnishment of: (1) any of Borrower's accounts,
including deposit accounts, with Lender and/or (2) any account, including
deposit accounts, with Lender of any guarantor, pledgor, accommodation party or
other obligor. However, this Event of Default shall not apply if there is a good
faith dispute by such Borrower and/or guarantor, ▇▇▇▇▇▇▇, accommodation party or
other obligor as to the validity or reasonableness of the claim which is the
basis of the creditor or forfeiture proceeding and if such Borrower and/or
guarantor, pledgor, accommodation party or other obligor gives Lender written
notice of the creditor of forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve or
bond for the dispute.
Adverse Change of Obligor. A material adverse change occurs in the financial
condition of any guarantor, ▇▇▇▇▇▇▇, accommodation party or other obligor, as
determined by Lender in its sole discretion.
Resignation/Withdrawal. The resignation or withdrawal of any partner or a
material owner of Borrower or any guarantor, ▇▇▇▇▇▇▇, accommodation party or
other obligor [or any substantial change in the present executive or management
personnel of Borrower, any guarantor, ▇▇▇▇▇▇▇, accommodation party or other
obligor], as determined by Lender in its sole discretion.
FINANCIAL STATEMENTS AND OTHER INFORMATION. Borrower will provide Lender with
such financial statements, including tax returns, other statements of condition
or other information, in form and content acceptable to Lender, as lender shall
request from time to time within fifteen days of the date of the request.
FEE FOR LATE FINANCIAL STATEMENTS. If any of the financial information required
by this Agreement is not provided to Lender within the time limits provided in
this Agreement, Lender may, at its option, charge a late fee to the defaulting
party in an amount set by Lender. The imposition and payment of a late fee shall
not constitute a waiver of Lender's rights with respect to the default.
COMPLIANCE WITH LOAN DOCUMENTS. Borrower(s) acknowledges) and agree(s) that
(its) (their) timely and complete compliance with all of the terms and
conditions contained in the documents evidencing and securing the loan
obligation is material consideration for the loan. Borrower('s)(s') failure to
timely and completely comply with each and every term and condition contained in
the documents evidencing and securing the loan is, at Lender's option, an event
of default under the loan. In addition to all other rights and remedies Lender
has, Lender may, in its sole discretion, elect to waive such default or to
forbear to exercise its rights and remedies for such default and may charge
Borrowers) a fee for agreeing to do so.
GOVERNING LAW. This Document will be governed by and interpreted in accordance
with federal law and the laws of the State of Florida.
ADDRESS FOR NOTICES. Any notice required to be given under this Note shall be
given in writing, and shall be effective when actually delivered, when actually
received by telefacsimile (unless otherwise required by law), when deposited
with a nationally recognized overnight courier, or, if mailed, when deposited in
the United States mail, as first class, certified or registered mail postage
prepaid, directed if to Borrower at the address shown near the beginning of this
Note and if to Lender at the address set forth below. Any party may change its
address for notices under this Note by giving formal written notice to the other
parties, specifying that the purpose of the notice is to change the party's
address. For notice purposes, Borrower agrees to keep Lender informed at all
times of Borrower's current address. Unless otherwise provided or required by
law, if there is more than one Borrower, any notice given by Lender to any
Borrower is deemed to be notice given to all Borrowers. Notwithstanding anything
to the contrary herein, all notices and communications to the Lender shall be
directed to the following address:
Bank of America, N.A.
Jacksonville CCS - Attn: Notice Desk ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
PROMISSORY NOTE
(Continued)
Page 4
APPRAISALS. Borrower agrees to reimburse Lender for the cost of periodic
appraisals of any real or personal property collateral securing the indebtedness
hereunder, at such intervals as Lender may reasonably require. The appraisals
may be performed by employees of Lender or by independent appraisers.
MAINTENANCE OF PRINCIPAL DEPOSIT ACCOUNTS. Borrower agrees to maintain its
principal deposit accounts with Lender.
USA PATRIOT ACT NOTICE.
Federal law requires all financial institutions to obtain, verify and record
information that identifies each person who opens an account or obtains a loan.
Lender will ask for the Borrower's legal name, address, tax ID number or social
security number and other identifying information. Lender may also ask for
additional information or documentation or take other actions reasonably
necessary to verify the identity of the Borrower, guarantors or other related
persons.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and
upon Borrower's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. 1f any part of this Note cannot be enforced, this fact will
not affect the rest of the Note. Borrower does not agree or intend to pay, and
Lender does not agree or intend to contract for, charge, collect, take, reserve
or receive (collectively referred to herein as "charge or collect"), any amount
in the nature of interest or in the nature of a fee for this loan, which would
in any way or event (including demand, prepayment, or acceleration) cause Lender
to charge or collect more for this loan than the maximum Lender would be
permitted to charge or collect by federal law or the law of the State of Florida
(as applicable). Any such excess interest or unauthorized fee shall, instead of
anything stated to the contrary, be applied first to reduce the principal
balance of this loan, and when the principal has been paid in full, be refunded
to Borrower. Lender may delay or forgo enforcing any of its rights or remedies
under this Note without losing them. Borrower and any other person who signs,
guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan or release
any party or guarantor or collateral; or impair, fail to realize upon or perfect
Lender's security interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone. All such parties
also agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Note are joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
PROCYON CORPORATION
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President of Procyon Corporation
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Florida Documentary Stamp Tax
Florida documentary stamp tax in the amount required by law has been paid with
respect to this Note on the Mortgage and Assignment of Rents securing this Note.
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