Exhibit 10.2
NOTE
$8,000,000 Date: June 10, 2004
FOR VALUE RECEIVED, TIMEPAYMENT CORP. LLC, a Delaware limited
liability company (the "Borrower"), promises to pay to the order of ACORN
CAPITAL GROUP, LLC (together with its successors and assigns, the "Lender"), on
or before the Final Maturity Date described in the Credit Agreement (as defined
below), the sum of EIGHT MILLION DOLLARS ($8,000,000), or, if less, the
aggregate unpaid principal amount of the Loan (as defined in the Credit
Agreement), together with interest thereon as set forth herein.
The Borrower shall repay principal and interest on the Loan at
the times and in the manner set forth in the Credit Agreement. The Borrower
shall pay interest on the unpaid principal amount of the Loan at the rate, at
the times and in the manner set forth in the Credit Agreement. Capitalized terms
used but not defined herein shall have the meanings set forth in that certain
Credit Agreement dated as of the date hereof (as amended, supplemented or
modified from time to time, the "Credit Agreement") among the Borrower, the
guarantors named therein and the Lender.
Upon the occurrence and continuance of an Event of Default
this Note may automatically become due and payable without notice or demand as
set forth in the Credit Agreement.
The Obligations of the Borrower under this Note are secured by
the Collateral and guarantied by the Guarantors pursuant to the Credit Agreement
and other Credit Documents. The Lender shall be entitled to setoff against and
apply to the payment hereof the balance of any account or accounts maintained
with the Lender by the Borrower and to exercise any other right or remedy
granted hereunder, or under any agreement between the Borrower and the Lender or
available at law or in equity, including, but not limited to, the rights and
remedies of a secured party under the New York Uniform Commercial Code. The
failure by the Lender at any time to exercise any such right shall not be deemed
a waiver thereof, nor shall it bar the exercise of any such right at a later
date. Each and every right and remedy granted to the Lender hereunder or under
any agreement between the Borrower and the Lender or available at law or in
equity shall be cumulative and not exclusive of any other rights, powers,
privileges or remedies, and may be exercised by the Lender from time to time and
as often as may be necessary in the sole and absolute discretion of the Lender.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY FEDERAL OR STATE COURT IN THE STATE OF NEW YORK IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS NOTE OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND CONSENTS TO THE PLACING OF VENUE
IN THE COUNTY OF NEW YORK OR OTHER COUNTY PERMITTED BY LAW. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY WAIVES AND AGREES NOT TO ASSERT
BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR
PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT
THIS NOTE OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN MAY NOT BE
LITIGATED IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
BORROWER AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE
JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION
WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT. THE BORROWER
AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED
MAIL TO THE ADDRESSES SET FORTH IN THE CREDIT AGREEMENT OR SUCH OTHER ADDRESS
THAT THE BORROWER SHALL HAVE NOTIFIED THE LENDER IN WRITING OR ANY METHOD
AUTHORIZED BY THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS PROHIBITED BY LAW,
THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS NOTE.
The Lender shall not, by any act, delay, omission or
otherwise, be deemed to have waived any of its rights and/or remedies hereunder.
The Borrower acknowledges that this Note and the Borrower's obligations under
this Note are, and shall at all times continue to be, absolute and unconditional
in all respects, and shall at all times be valid and enforceable irrespective of
any other agreements or circumstances of any nature whatsoever which might
otherwise constitute a defense to this Note and the obligations of the Borrower
under this Note. The Borrower absolutely, unconditionally and irrevocably waives
any and all right to assert any set-off, counterclaim or crossclaim of any
nature whatsoever with respect to this Note or the Borrower's obligations
hereunder.
The Borrower hereby waives presentment, demand for payment,
protest, notice of dishonor, and any and all other notices or demands in
connection with the delivery, acceptance, performance, default, or enforcement
of this Note.
Any consents, agreements, instructions or requests pertaining
to any matter in connection with this Note, signed by the Borrower, shall be
binding upon the Borrower. This Note shall bind the respective successors, heirs
or representatives of the Borrower. This Note and the Credit Agreement shall not
be assigned by the Borrower without the Lender's prior written consent.
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Signature Page to Note
IN WITNESS WHEREOF, the Borrower has duly executed this Note
the day and year first above written.
TIMEPAYMENT CORP. LLC
By_________________________________
Name:
Title:
State of ________________)
) ss.
County of _______________)
On June __, 2004, before me, a Notary Public, personally
appeared _____________, personally known to me or proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
SEAL _______________________________________
Notary Public