Exhibit 10(xiii)
PROMISSORY NOTE
$1,128,373.24 Date: April 3, 2001
FOR VALUE RECEIVED, the undersigned, MRY Partners, L.P., a Georgia limited
partnership (the "Borrower"), hereby unconditionally promises to pay to the
order of National Data Corporation (hereafter, together with any holder hereof,
the "Holder") at the offices of the Holder located at National Data Plaza,
Atlanta, Georgia 30329, or at such other place as the Holder may designate in
writing to the Borrower, in lawful money of the United States of America, in
immediately available funds, the principal sum of ONE MILLION ONE HUNDRED TWENTY
- - EIGHT THOUSAND THREE HUNDRED SEVENTY-THREE AND 24/100 DOLLARS ($1,128,373.24),
together with interest on the principal balance from time to time outstanding
hereunder (computed on the basis of a 360-day year for the actual number of days
elapsed) from the date hereof until paid in full at a per annum rate equal to
4.63% in simple interest terms.
The principal balance shall be payable in full on July 28, 2002. Accrued
interest shall be payable annually on each April 3 during the term of this Note.
Accrued interest shall also be due and payable on any date on which the
principal balance is due (whether by acceleration, maturity or otherwise) other
than any date on which a Collateral Sale Mandatory Prepayment is due.
The Borrower shall prepay a portion of the outstanding principal amount
owing under this Note immediately following the settlement date with respect to
the sale, transfer or other disposition of a portion (but not all) of the July
28, 1992 Option Securities (as such term is defined Schedule 1 to that certain
Stock Pledge Agreement dated as of the date hereof between the Borrower and the
Holder). Such prepayment shall be in an amount equal to the product of (a) a
fraction, (i) the numerator of which is the number of shares of such July 28,
1992 Option Securities so sold, transferred or disposed of, and (ii) the
denominator of which is the total number of shares of such July 28, 1992 Option
Securities owned by the Borrower immediately prior to such sale, transfer or
disposition, multiplied by (b) the unpaid principal amount of this note as of
such date (the "Collateral Sale Mandatory Prepayment"). Upon a sale, transfer or
other disposition of all of the July 28, 1992 Option Securities, the entire
principal balance hereunder and any accrued interest thereon shall become due
and payable immediately following the settlement date with respect to the sale,
transfer or other disposition.
Interest shall accrue on any amount past due hereunder at a per annum rate
equal to 2.0% in excess of the interest rate otherwise payable hereunder. All
such interest shall be due and payable on demand.
In no event shall the amount of interest due and payable under this Note
exceed the maximum rate of interest allowed by applicable law and, in the event
any such payment is inadvertently paid by the Borrower or inadvertently received
by the Holder, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Holder in writing that the Borrower elects
to have such excess sum returned to it forthwith. It is the express intent of
the parties hereto that the Borrower not pay and the Holder not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that
which may be lawfully paid by the Borrower under applicable law.
THE BORROWER, AND THE HOLDER BY ACCEPTING THIS NOTE, EACH AGREES AND
STIPULATES THAT THE ONLY CHARGE IMPOSED UPON THE BORROWER FOR THE USE OF MONEY
IN CONNECTION WITH THIS NOTE IS AND SHALL BE THE INTEREST DESCRIBED IN THE FIRST
PARAGRAPH HEREOF, AND FURTHER AGREES AND STIPULATES THAT ALL OTHER CHARGES
IMPOSED BY THE HOLDER ON THE BORROWER IN CONNECTION WITH THIS NOTE, INCLUDING
WITHOUT LIMITATION, ALL DEFAULT CHARGES, LATE CHARGES AND ATTORNEYS' FEES, ARE
CHARGES MADE TO COMPENSATE THE HOLDER FOR ADMINISTRATIVE SERVICES AND COSTS OR
LOSSES INCURRED, AND TO BE INCURRED, BY THE HOLDER IN CONNECTION WITH THIS NOTE
AND SHALL UNDER NO CIRCUMSTANCES BE DEEMED TO BE CHARGES FOR THE USE OF MONEY
PURSUANT TO OFFICIAL CODE OF GEORGIA ANNOTATED SECTION 7-4-2 OR SECTION 7-4-18.
ALL CHARGES OTHER THAN CHARGES FOR THE USE OF MONEY SHALL BE FULLY EARNED AND
NONREFUNDABLE WHEN DUE.
Each of the following events shall constitute an "Event of Default" under
this Note: (i) failure of the Borrower to pay any principal, interest or other
amount due hereunder when due; (ii) the Borrower shall fail to comply with any
of the terms, covenants or conditions contained in this Note or in the Stock
Pledge Agreement dated as of the date hereof executed by the Borrower in favor
of the Holder (as amended, restated, supplemented or otherwise modified from
time to time, the "Pledge Agreement"); (iii) any written representation or
warranty made at any time by the Borrower to the Holder shall prove to have been
incorrect or misleading in any material respect when made; (iv) the institution
of bankruptcy proceedings against the Borrower or Robert A. Yellowlees and such
proceedings have not been dismissed on or before 60 days after the institution
thereof, the bankruptcy of the Borrower or Robert A. Yellowlees or the
commencement of a voluntary case by the Borrower or Robert A. Yellowlees under
the Bankruptcy Code of 1978, as amended or other federal bankruptcy law (as now
or hereafter in effect); (v) the Holder shall cease to have a valid and
perfected security interest in the Collateral (as defined in the Pledge
Agreement) for any reason other than the failure of the Holder to take any
action within its control; and (vi) the Holder shall reasonably determine that
the prospect of repayment under this Note is impaired.
Upon the occurrence of an Event of Default (other than an Event of Default
described in clause (iv) of the definition thereof), the entire outstanding
principal balance of this Note, together with all accrued and unpaid interest
thereon, and all of the Borrower's other obligations owing hereunder, at the
option of the Holder, and without demand or notice of any kind, may be
immediately declared, and thereupon shall immediately become in default and due
and payable and the Holder may exercise any and all rights and remedies
available to it at law, in equity or otherwise. Upon the occurrence of an Event
of Default described in clause (iv) of the definition thereof, the entire
outstanding principal balance of this Note, together with all accrued and unpaid
interest thereon, and all of the Borrower's other obligations owing hereunder,
without demand or
-2-
notice of any kind, shall immediately become in default and
due and payable and the Holder may exercise any and all rights and remedies
available to it at law, in equity or otherwise.
The Borrower shall pay all expenses incurred by the Holder in the
collection of this Note, including, without limitation, the reasonable fees and
disbursements of counsel to the Holder if this Note is collected by or through
an attorney-at-law.
Time is of the essence of this Note.
EACH OF THE HOLDER AND THE BORROWER HEREBY AGREES THAT ANY ACTION OR
PROCEEDING RELATING TO THIS NOTE SHALL BE SUBJECT TO BINDING ARBITRATION BEFORE
THE NATIONAL ASSOCIATION OF SECURITIES DEALERS ("NASD") OR, IF FOR ANY REASON
INELIGIBLE, THE AMERICAN ARBITRATION ASSOCIATION ("ASA"), IN ACCORDANCE WITH THE
RULES OF PROCEDURE THEN IN EFFECT. ANY ARBITRATION PROCEEDINGS SHALL TAKE PLACE
IN ATLANTA, GEORGIA AND BORROWER IRREVOCABLY SUBMITS AND CONSENTS TO THIS
ARBITRATION PROVISION AND VENUE.
THE BORROWER AGREES THAT ALL OF ITS PAYMENT OBLIGATIONS HEREUNDER SHALL BE
ABSOLUTE, UNCONDITIONAL AND, FOR THE PURPOSES OF MAKING PAYMENTS HEREUNDER, THE
BORROWER HEREBY WAIVES ANY RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR CROSS-
CLAIM.
No delay or failure on the part of the Holder in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Holder of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy.
All amendments to this Note, and any waiver or consent of the Holder, must
be in writing and signed by the Holder and the Borrower.
The Borrower hereby waives presentment, demand, notice of dishonor,
protests and all other notices whatever.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF GEORGIA.
This Note shall be binding upon the administrators, successors or assigns
of the Borrower. A Holder of this Note may assign or transfer this Note to any
person or entity without notice to, or the consent of, the Borrower; provided,
this Note may not be assigned by the Borrower.
Any notice to be given hereunder shall be in writing, shall be sent to the
Holder's address as specified in the first paragraph hereof or the Borrower's
addresses set forth below its signature hereto, as the case may be, and shall be
deemed received (i) on the earlier of the date of receipt or the date three
business days after deposit of such notice in the United States mail, if sent
postage prepaid, certified mail, return receipt requested or (ii) when actually
received, if personally delivered.
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[Signature on Next Page]
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IN WITNESS WHEREOF, the Borrower has executed and delivered this Promissory
Note under seal as of the date and year first written above.
MRY PARTNERS, L.P.
By: /s/ Robert A. Yellowlees
------------------------------
Name: Robert A. Yellowlees
Title: General Partner
-5-
PROMISSORY NOTE
$1,483,503.21 Date: April 3, 2001
FOR VALUE RECEIVED, the undersigned, MRY Partners, L.P., a Georgia limited
partnership (the "Borrower"), hereby unconditionally promises to pay to the
order of National Data Corporation (hereafter, together with any holder hereof,
the "Holder") at the offices of the Holder located at National Data Plaza,
Atlanta, Georgia 30329, or at such other place as the Holder may designate in
writing to the Borrower, in lawful money of the United States of America, in
immediately available funds, the principal sum of ONE MILLION FOUR HUNDRED
EIGHT-THREE THOUSAND FIVE HUNDRED THREE AND 21/100 DOLLARS ($1,483,503.21),
together with interest on the principal balance from time to time outstanding
hereunder (computed on the basis of a 360-day year for the actual number of days
elapsed) from the date hereof until paid in full at a per annum rate equal to
4.63% in simple interest terms.
The principal balance shall be payable in full on June 1, 2003. Accrued
interest shall be payable annually on each April 3 during the term of this Note.
Accrued interest shall also be due and payable on any date on which the
principal balance is due (whether by acceleration, maturity or otherwise) other
than any date on which a Collateral Sale Mandatory Prepayment is due.
The Borrower shall prepay a portion of the outstanding principal amount
owing under this Note immediately following the settlement date with respect to
the sale, transfer or other disposition of a portion (but not all) of the June
1, 1993 Option Securities (as such term is defined Schedule 1 to that certain
Stock Pledge Agreement dated as of the date hereof between the Borrower and the
Holder). Such prepayment shall be in an amount equal to the product of (a) a
fraction, (i) the numerator of which is the number of shares of such June 1,
1993 Option Securities so sold, transferred or disposed of, and (ii) the
denominator of which is the total number of shares of such June 1, 1993 Option
Securities owned by the Borrower immediately prior to such sale, transfer or
disposition, multiplied by (b) the unpaid principal amount of this note as of
such date (the "Collateral Sale Mandatory Prepayment"). Upon a sale, transfer or
other disposition of all of the June 1, 1993 Option Securities, the entire
principal balance hereunder and any accrued interest thereon shall become due
and payable immediately following the settlement date with respect to the sale,
transfer or other disposition.
Interest shall accrue on any amount past due hereunder at a per annum rate
equal to 2.0% in excess of the interest rate otherwise payable hereunder. All
such interest shall be due and payable on demand.
In no event shall the amount of interest due and payable under this Note
exceed the maximum rate of interest allowed by applicable law and, in the event
any such payment is inadvertently paid by the Borrower or inadvertently received
by the Holder, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Holder in writing that the Borrower elects
to have such excess sum returned to it forthwith. It is the express intent of
the parties hereto that the Borrower not pay and the Holder not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that
which may be lawfully paid by the Borrower under applicable law.
-6-
THE BORROWER, AND THE HOLDER BY ACCEPTING THIS NOTE, EACH AGREES AND
STIPULATES THAT THE ONLY CHARGE IMPOSED UPON THE BORROWER FOR THE USE OF MONEY
IN CONNECTION WITH THIS NOTE IS AND SHALL BE THE INTEREST DESCRIBED IN THE FIRST
PARAGRAPH HEREOF, AND FURTHER AGREES AND STIPULATES THAT ALL OTHER CHARGES
IMPOSED BY THE HOLDER ON THE BORROWER IN CONNECTION WITH THIS NOTE, INCLUDING
WITHOUT LIMITATION, ALL DEFAULT CHARGES, LATE CHARGES AND ATTORNEYS' FEES, ARE
CHARGES MADE TO COMPENSATE THE HOLDER FOR ADMINISTRATIVE SERVICES AND COSTS OR
LOSSES INCURRED, AND TO BE INCURRED, BY THE HOLDER IN CONNECTION WITH THIS NOTE
AND SHALL UNDER NO CIRCUMSTANCES BE DEEMED TO BE CHARGES FOR THE USE OF MONEY
PURSUANT TO OFFICIAL CODE OF GEORGIA ANNOTATED SECTION 7-4-2 OR SECTION 7-4-18.
ALL CHARGES OTHER THAN CHARGES FOR THE USE OF MONEY SHALL BE FULLY EARNED AND
NONREFUNDABLE WHEN DUE.
Each of the following events shall constitute an "Event of Default"
under this Note: (i) failure of the Borrower to pay any principal, interest or
other amount due hereunder when due; (ii) the Borrower shall fail to comply with
any of the terms, covenants or conditions contained in this Note or in the Stock
Pledge Agreement dated as of the date hereof executed by the Borrower in favor
of the Holder (as amended, restated, supplemented or otherwise modified from
time to time, the "Pledge Agreement"); (iii) any written representation or
warranty made at any time by the Borrower to the Holder shall prove to have been
incorrect or misleading in any material respect when made; (iv) the institution
of bankruptcy proceedings against the Borrower or Robert A. Yellowlees and such
proceedings have not been dismissed on or before 60 days after the institution
thereof, the bankruptcy of the Borrower or Robert A. Yellowlees or the
commencement of a voluntary case by the Borrower or Robert A. Yellowlees under
the Bankruptcy Code of 1978, as amended or other federal bankruptcy law (as now
or hereafter in effect); (v) the Holder shall cease to have a valid and
perfected security interest in the Collateral (as defined in the Pledge
Agreement) for any reason other than the failure of the Holder to take any
action within its control; and (vi) the Holder shall reasonably determine that
the prospect of repayment under this Note is impaired.
Upon the occurrence of an Event of Default (other than an Event of
Default described in clause (iv) of the definition thereof), the entire
outstanding principal balance of this Note, together with all accrued and unpaid
interest thereon, and all of the Borrower's other obligations owing hereunder,
at the option of the Holder, and without demand or notice of any kind, may be
immediately declared, and thereupon shall immediately become in default and due
and payable and the Holder may exercise any and all rights and remedies
available to it at law, in equity or otherwise. Upon the occurrence of an Event
of Default described in clause (iv) of the definition thereof, the entire
outstanding principal balance of this Note, together with all accrued and unpaid
interest thereon, and all of the Borrower's other obligations owing hereunder,
without demand or notice of any kind, shall immediately become in default and
due and payable and the Holder may exercise any and all rights and remedies
available to it at law, in equity or otherwise.
-7-
The Borrower shall pay all expenses incurred by the Holder in the
collection of this Note, including, without limitation, the reasonable fees and
disbursements of counsel to the Holder if this Note is collected by or through
an attorney-at-law.
Time is of the essence of this Note.
EACH OF THE HOLDER AND THE BORROWER HEREBY AGREES THAT ANY ACTION OR
PROCEEDING RELATING TO THIS NOTE SHALL BE SUBJECT TO BINDING ARBITRATION BEFORE
THE NATIONAL ASSOCIATION OF SECURITIES DEALERS ("NASD") OR, IF FOR ANY REASON
INELIGIBLE, THE AMERICAN ARBITRATION ASSOCIATION ("ASA"), IN ACCORDANCE WITH THE
RULES OF PROCEDURE THEN IN EFFECT. ANY ARBITRATION PROCEEDINGS SHALL TAKE PLACE
IN ATLANTA, GEORGIA AND BORROWER IRREVOCABLY SUBMITS AND CONSENTS TO THIS
ARBITRATION PROVISION AND VENUE.
THE BORROWER AGREES THAT ALL OF ITS PAYMENT OBLIGATIONS HEREUNDER
SHALL BE ABSOLUTE, UNCONDITIONAL AND, FOR THE PURPOSES OF MAKING PAYMENTS
HEREUNDER, THE BORROWER HEREBY WAIVES ANY RIGHT TO ASSERT ANY SETOFF,
COUNTERCLAIM OR CROSS-CLAIM.
No delay or failure on the part of the Holder in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Holder of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy.
All amendments to this Note, and any waiver or consent of the Holder,
must be in writing and signed by the Holder and the Borrower.
The Borrower hereby waives presentment, demand, notice of dishonor,
protests and all other notices whatever.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF GEORGIA.
This Note shall be binding upon the administrators, successors or
assigns of the Borrower. A Holder of this Note may assign or transfer this Note
to any person or entity without notice to, or the consent of, the Borrower;
provided, this Note may not be assigned by the Borrower.
Any notice to be given hereunder shall be in writing, shall be sent to
the Holder's address as specified in the first paragraph hereof or the
Borrower's addresses set forth below its signature hereto, as the case may be,
and shall be deemed received (i) on the earlier of the date of receipt or the
date three business days after deposit of such notice in the United States mail,
if sent postage prepaid, certified mail, return receipt requested or (ii) when
actually received, if personally delivered.
[Signature on Next Page]
-8-
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Promissory Note under seal as of the date and year first written above.
MRY PARTNERS, L.P.
By: /s/ Robert A. Yellowlees
----------------------------
Name: Robert A. Yellowlees
Title: General Partner
-9-
PROMISSORY NOTE
$1,675,503.21 Date: April 3, 2001
FOR VALUE RECEIVED, the undersigned, MRY Partners, L.P., a Georgia
limited partnership (the "Borrower"), hereby unconditionally promises to pay to
the order of National Data Corporation (hereafter, together with any holder
hereof, the "Holder") at the offices of the Holder located at National Data
Plaza, Atlanta, Georgia 30329, or at such other place as the Holder may
designate in writing to the Borrower, in lawful money of the United States of
America, in immediately available funds, the principal sum of ONE MILLION FOUR
HUNDRED EIGHT-THREE THOUSAND FIVE HUNDRED THREE AND 21/100 DOLLARS
($1,483,503.21), together with interest on the principal balance from time to
time outstanding hereunder (computed on the basis of a 360-day year for the
actual number of days elapsed) from the date hereof until paid in full at a per
annum rate equal to 4.63% in simple interest terms.
The principal balance shall be payable in full on June 1, 2003.
Accrued interest shall be payable annually on each April 3 during the term of
this Note. Accrued interest shall also be due and payable on any date on which
the principal balance is due (whether by acceleration, maturity or otherwise)
other than any date on which a Collateral Sale Mandatory Prepayment is due.
The Borrower shall prepay a portion of the outstanding principal
amount owing under this Note immediately following the settlement date with
respect to the sale, transfer or other disposition of a portion (but not all) of
the June 1, 1993 Option Securities (as such term is defined Schedule 1 to that
certain Stock Pledge Agreement dated as of the date hereof between the Borrower
and the Holder). Such prepayment shall be in an amount equal to the product of
(a) a fraction, (i) the numerator of which is the number of shares of such June
1, 1993 Option Securities so sold, transferred or disposed of, and (ii) the
denominator of which is the total number of shares of such June 1, 1993 Option
Securities owned by the Borrower immediately prior to such sale, transfer or
disposition, multiplied by (b) the unpaid principal amount of this note as of
such date (the "Collateral Sale Mandatory Prepayment"). Upon a sale, transfer or
other disposition of all of the June 1, 1993 Option Securities, the entire
principal balance hereunder and any accrued interest thereon shall become due
and payable immediately following the settlement date with respect to the sale,
transfer or other disposition.
Interest shall accrue on any amount past due hereunder at a per annum
rate equal to 2.0% in excess of the interest rate otherwise payable hereunder.
All such interest shall be due and payable on demand.
In no event shall the amount of interest due and payable under this
Note exceed the maximum rate of interest allowed by applicable law and, in the
event any such payment is inadvertently paid by the Borrower or inadvertently
received by the Holder, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the Holder in writing that the
Borrower elects to have such excess sum returned to it forthwith. It is the
express intent of the parties hereto that the Borrower not pay and the Holder
not receive, directly or indirectly, in
-10-
any manner whatsoever, interest in excess of that which may be lawfully paid by
the Borrower under applicable law.
THE BORROWER, AND THE HOLDER BY ACCEPTING THIS NOTE, EACH AGREES AND
STIPULATES THAT THE ONLY CHARGE IMPOSED UPON THE BORROWER FOR THE USE OF MONEY
IN CONNECTION WITH THIS NOTE IS AND SHALL BE THE INTEREST DESCRIBED IN THE FIRST
PARAGRAPH HEREOF, AND FURTHER AGREES AND STIPULATES THAT ALL OTHER CHARGES
IMPOSED BY THE HOLDER ON THE BORROWER IN CONNECTION WITH THIS NOTE, INCLUDING
WITHOUT LIMITATION, ALL DEFAULT CHARGES, LATE CHARGES AND ATTORNEYS' FEES, ARE
CHARGES MADE TO COMPENSATE THE HOLDER FOR ADMINISTRATIVE SERVICES AND COSTS OR
LOSSES INCURRED, AND TO BE INCURRED, BY THE HOLDER IN CONNECTION WITH THIS NOTE
AND SHALL UNDER NO CIRCUMSTANCES BE DEEMED TO BE CHARGES FOR THE USE OF MONEY
PURSUANT TO OFFICIAL CODE OF GEORGIA ANNOTATED SECTION 7-4-2 OR SECTION 7-4-18.
ALL CHARGES OTHER THAN CHARGES FOR THE USE OF MONEY SHALL BE FULLY EARNED AND
NONREFUNDABLE WHEN DUE.
Each of the following events shall constitute an "Event of Default"
under this Note: (i) failure of the Borrower to pay any principal, interest or
other amount due hereunder when due; (ii) the Borrower shall fail to comply with
any of the terms, covenants or conditions contained in this Note or in the Stock
Pledge Agreement dated as of the date hereof executed by the Borrower in favor
of the Holder (as amended, restated, supplemented or otherwise modified from
time to time, the "Pledge Agreement"); (iii) any written representation or
warranty made at any time by the Borrower to the Holder shall prove to have been
incorrect or misleading in any material respect when made; (iv) the institution
of bankruptcy proceedings against the Borrower or Robert A. Yellowlees and such
proceedings have not been dismissed on or before 60 days after the institution
thereof, the bankruptcy of the Borrower or Robert A. Yellowlees or the
commencement of a voluntary case by the Borrower or Robert A. Yellowlees under
the Bankruptcy Code of 1978, as amended or other federal bankruptcy law (as now
or hereafter in effect); (v) the Holder shall cease to have a valid and
perfected security interest in the Collateral (as defined in the Pledge
Agreement) for any reason other than the failure of the Holder to take any
action within its control; and (vi) the Holder shall reasonably determine that
the prospect of repayment under this Note is impaired.
Upon the occurrence of an Event of Default (other than an Event of
Default described in clause (iv) of the definition thereof), the entire
outstanding principal balance of this Note, together with all accrued and unpaid
interest thereon, and all of the Borrower's other obligations owing hereunder,
at the option of the Holder, and without demand or notice of any kind, may be
immediately declared, and thereupon shall immediately become in default and due
and payable and the Holder may exercise any and all rights and remedies
available to it at law, in equity or otherwise. Upon the occurrence of an Event
of Default described in clause (iv) of the definition thereof, the entire
outstanding principal balance of this Note, together with all accrued and unpaid
interest thereon, and all of the Borrower's other obligations owing hereunder,
without demand or notice of any kind, shall immediately become in default and
due and payable and the Holder may exercise any and all rights and remedies
available to it at law, in equity or otherwise.
-11-
The Borrower shall pay all expenses incurred by the Holder in the
collection of this Note, including, without limitation, the reasonable fees and
disbursements of counsel to the Holder if this Note is collected by or through
an attorney-at-law.
Time is of the essence of this Note.
EACH OF THE HOLDER AND THE BORROWER HEREBY AGREES THAT ANY ACTION OR
PROCEEDING RELATING TO THIS NOTE SHALL BE SUBJECT TO BINDING ARBITRATION BEFORE
THE NATIONAL ASSOCIATION OF SECURITIES DEALERS ("NASD") OR, IF FOR ANY REASON
INELIGIBLE, THE AMERICAN ARBITRATION ASSOCIATION ("ASA"), IN ACCORDANCE WITH THE
RULES OF PROCEDURE THEN IN EFFECT. ANY ARBITRATION PROCEEDINGS SHALL TAKE PLACE
IN ATLANTA, GEORGIA AND BORROWER IRREVOCABLY SUBMITS AND CONSENTS TO THIS
ARBITRATION PROVISION AND VENUE.
THE BORROWER AGREES THAT ALL OF ITS PAYMENT OBLIGATIONS HEREUNDER
SHALL BE ABSOLUTE, UNCONDITIONAL AND, FOR THE PURPOSES OF MAKING PAYMENTS
HEREUNDER, THE BORROWER HEREBY WAIVES ANY RIGHT TO ASSERT ANY SETOFF,
COUNTERCLAIM OR CROSS-CLAIM.
No delay or failure on the part of the Holder in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Holder of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy.
All amendments to this Note, and any waiver or consent of the Holder,
must be in writing and signed by the Holder and the Borrower.
The Borrower hereby waives presentment, demand, notice of dishonor,
protests and all other notices whatever.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF GEORGIA.
This Note shall be binding upon the administrators, successors or
assigns of the Borrower. A Holder of this Note may assign or transfer this Note
to any person or entity without notice to, or the consent of, the Borrower;
provided, this Note may not be assigned by the Borrower.
Any notice to be given hereunder shall be in writing, shall be sent to
the Holder's address as specified in the first paragraph hereof or the
Borrower's addresses set forth below its signature hereto, as the case may be,
and shall be deemed received (i) on the earlier of the date of receipt or the
date three business days after deposit of such notice in the United States mail,
if sent postage prepaid, certified mail, return receipt requested or (ii) when
actually received, if personally delivered.
[Signature on Next Page]
-12-
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Promissory Note under seal as of the date and year first written above.
MRY PARTNERS, L.P.
By: /s/ Robert A. Yellowlees
-------------------------
Name: Robert A. Yellowlees
Title: General Partner
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