EXHIBIT 10(x)(vi)
PROMISSORY NOTE
U.S. $4,000,000.00 November 10, 1999
FOR VALUE RECEIVED, the undersigned, QMS Europe B.V., a corporation organized
under the laws of The Netherlands ("Maker"), promises to pay to the order of
QMS, Inc., a corporation organized under the laws of the State of Delaware
(herein, along with each subsequent holder of this Note, referred to as
"Holder"), the principal sum of FOUR MILLION AND 00/100 DOLLARS (US
$4,000,000.00) plus interest as provided herein.
The applicable interest rate for this Note (the "Applicable Rate") shall be an
adjustable rate per annum equal to three percent (3.00%) in excess of "LIBOR"
(as defined herein) from time to time in effect, but in no event less than a
rate of six and one-half percent (6.50%) per annum. "LIBOR" refers to (i) the
London Interbank Offered Rate for the applicable LIBOR Adjustment Period as
quoted on the Telerate Information System on the date of determination of the
Applicable Rate (or in the event no such quotation is available on such data, as
quoted on the day most immediately preceding the date of determination on which
such a quotation was available), or (ii) in the event the Telerate Information
System ceases to be available or ceases to provide information sufficient to
determine the London Interbank Offered Rate for the applicable LIBOR Adjustment
Period (as defined herein), the London Interbank Offered Rate for the applicable
LIBOR Adjustment Period as published in the Wall Street Journal on the date of
determination of the interest rate (or in the event no such quotation is
available on such date, as quoted on the day most immediately preceding the date
of determination on which such a quotation was available). The Applicable Rate
shall be determined as of the date hereof and as of the fist day following the
end of each succeeding ninety (90) day period ("LIBOR Adjustment Period")
during the remaining term of this Note (or in the event no such quotation is
available on such date, as quoted on the day most immediately preceding the date
of determination on which such a quotation was available) (the "Interest
Adjustment Dates") and will be adjusted as of each Interest Adjustment Date to
correspond to any change in the ninety (90) day LIBOR rate.
Throughout the term of this Note, interest payments shall be made in monthly
installments, commencing on December 10, 1999. Interest payments shall be
computed on the basis of the prevailing Applicable Rate and the actual principal
sum outstanding from time to time. Principal due hereunder shall be repaid in
forty-seven (47 consecutive monthly installments in the amount of $83,333.33
each commencing on December 10, 1999, and a final forty-eighth (48th) payment of
all principal, interest and other amounts due under this Note, which forty-
eighth (48th) payment shall be due and payable on November 10, 2003, the
maturity date of this Promissory Note.
Should the principal or any interest hereunder not be paid when due, the Holder
shall have the right to declare the unpaid principal and all accrued interest of
this Note to be forthwith due and payable, in which event the remaining
principal balance due and unpaid hereunder shall bear interest at a per annum
rate equal to the Applicable Rate in force from time to time, plus two percent
(2%).
The principal hereof and any interest hereon shall be payable in lawful money of
the United States of America, at such place as the Holder may designate in
writing to Maker. The Maker may prepay this Note in full or in part at any time
without notice, penalty or prepayment fee.
Maker agrees to pay the Holder hereof reasonable attorneys' fees for the
services of counsel employed to collect this Note, whether or not suit be
brought, and whether incurred in connection with collection, trial, appeal, or
otherwise.
In no event shall the amount of interest due and payable hereunder exceed the
maximum rate of interest allowed by applicable law, and in the event any such
payment is inadvertently paid by Maker or inadvertently received by Holder, then
such excess shall be credited as a payment of principal, unless Maker shall
notify the Holder, in writing, that Maker elected to have such excess sum
returned to it forthwith. It is the express intent hereof that Maker not pay
and Holder not receive, directly or indirectly, in any manner whatsoever,
interest in excess of that which may be lawfully paid by the Maker under
applicable law.
The remedies of Holder as provided herein and in any other documents governing
repayment hereof shall be cumulative and concurrent 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.
No act of omission or commission of Holder, including specifically any failure
to exercise any right, remedy, or recourse, shall be effective unless set forth
in a written document executed by Holder, and then only to the extent
specifically recited therein. A waiver or release with reference to one event
shall not be construed as continuing, as a bar to, or as a waiver or release of
any subsequent right, remedy, or recourse as to any subsequent event.
Maker hereby (a) waives demand, presentment of payment, notice of nonpayment,
protest, notice of protest and all other notice, filing of suit, and diligence
in collecting this Note and (b) agrees that the Holder shall not be required to
institute any suit, or to exhaust its remedies against Maker in order to enforce
payments of this Note.
Whenever used in this Note, the words "Maker" and "Holder" shall be deemed to
include Maker and the Holder named in the opening paragraph of this Note, and
their respective legal representatives, successors, and assigns. It is
expressly understood and agreed that the Holder shall never be construed for any
purpose as a partner, joint
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venturer, co-principal, or associate of Maker, or of any person or party
claiming by, through, or under Maker in the conduct of their respective
businesses.
Time is of the essence of this Note.
This Note shall be construed and enforced in accordance with the laws of the
State of Alabama.
IN WITNESS WHEREOF, the undersigned Maker has executed this instrument under
seal as of the day and year first above written.
MAKER:
[SEAL] QMS Europe B.V., a corporation
organized under the laws of The
Netherlands
By: /s/ Jan Sundelin
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Jan Sundelin
Title: Managing Director
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