EXHIBIT 10.4.5
PROMISSORY NOTE B
$3,500,000.00 February 1, 2001
Raleigh, North Carolina
FOR VALUE RECEIVED, the undersigned, e-commerce support centers, inc., a
North Carolina corporation (the "Company") hereby promises to pay to the order
of Gibralter Publishing, Inc., a North Carolina corporation ("Gibralter"), at
its principal office, or at such other place as the holder hereof may designate,
the principal sum of Three Million Five Hundred Thousand and No/100 Dollars
($3,500,000.00), plus all accrued and unpaid interest thereon. All principal and
interest shall be paid in collected and immediately available funds in lawful
money of the United States of America. Interest shall accrue from the date
hereof up to and through the date on which all principal and interest under this
Note is to be paid in full. Interest shall be computed on the basis of actual
number of days elapsed in a 365-day year, and shall be calculated on the
outstanding principal balance hereunder at an annual rate of interest equal to
ten percent (10%) per annum. Principal and interest under this Note shall be
payable in twelve (12) consecutive equal quarterly installments of principal,
plus accrued interest, each on the first business day of each calendar quarter
during the term hereof, beginning on the first business day of the calendar
quarter immediately following the date of this Note (each, a "Quarterly
Installment Payment" and collectively, the "Quarterly Installment Payments").
If one or more Quarterly Installment Payments are not made on the date due,
notwithstanding that a Default (as defined below) has not occurred, additional
interest shall accrue on all past due principal and accrued interest hereunder
at a rate of four and one-half percent (4.5%) per annum (the "Additional
Interest") (so that aggregate interest is increased to 14.5%) until such time as
the Company cures all past due payments of principal and accrued interest.
This Note is given in accordance with the terms of that certain Agreement
and Plan of Merger dated as of December 21, 2000, between the parties thereto
(the "Merger Agreement"). All capitalized terms used herein and not otherwise
defined shall have their respective meanings as set forth in the Merger
Agreement.
This Note shall be secured by a security interest granted pursuant to a
security agreement dated as of the 1st day of February, 2001 (the "Security
Agreement").
The following events shall constitute a default under this Note (each, a
"Default"): (a) the Company's failure to make three (3) Quarterly Installment
Payments during the term of this Note and which default is not cured in
accordance with the terms and conditions below; or (b) a default or breach shall
occur under any other promissory note, loan or credit agreement, lien
instrument, or other financing document to which the Company is a party and
which default or breach is not cured within any applicable grace period
thereunder.
If a Default occurs under this Note, Gibralter may at any time thereafter
take the following actions: (a) foreclose its security interest or lien against
the Option Assets; (b) bring an action at law or equity against the Company for
all amounts due and then owing or to be paid under this Note; (c) accelerate the
maturity of the Note, whereupon the Note shall be immediately due and payable in
full; and (d) exercise any rights and remedies as provided under this Note, or
as provided by law or equity.
In consideration of the loan evidenced by this Note, Paladyne Corp., a
Delaware corporation ("Paladyne" or "Guarantor") hereby irrevocably, absolutely
and unconditionally guarantees prompt payment of this Note in full, when due,
whether by acceleration or otherwise, to Gibralter, its successors, endorsees,
or assigns, irrespective of the genuineness, validity or enforceability of this
Note, or the existence of any security for payment of this Note, pursuant to
that certain unconditional guaranty agreement dated as of the 1st day of
February, 2001 (the "Guaranty").
Until a Default has occurred, if the Company shall fail to pay all or part
of any Quarterly Installment Payments, Paladyne may cure any and all past due
payments of principal and accrued interest by making the next Quarterly
Installment Payment; provided, however, that Quarterly Installment Payments
shall increase by an amount equal to the quotient derived by dividing (i) the
aggregate amount of past due principal and interest, by (ii) the number of
remaining Quarterly Installment Payments.
In addition to principal and interest, the Company agrees to pay all costs
of collection, including, without limitation, reasonable attorneys' fees if the
indebtedness evidenced hereby is collected by or through an attorney-at-law.
The Company at its option may prepay the indebtedness evidenced by this
Note in whole or in part at any time without penalty or premium but with accrued
interest to the date of such prepayment of the principal amount prepaid.
No delay or failure on the part of Gibralter or on the part of any holder
of this Note in the exercise of any right, power or privilege granted under this
Note, or otherwise available by agreement, at law or in equity, shall impair any
such right, power or privilege or be construed as a waiver thereof. No single or
partial exercise of any such right, power or privilege shall preclude the
further exercise of such right, power or privilege. No waiver shall be valid
against Gibralter unless made in writing and signed by Gibralter, and then only
to the extent expressly specified therein.
This Note shall not be subordinated, assigned or otherwise transferred by
the Company without the prior written consent of Gibralter.
Any debt financing incurred by either the Company or Paladyne after the
date hereof shall be subject to the prior written approval of Gibralter (which
approval shall not be unreasonably withheld) until all obligations of the
Company under this Note are satisfied in full.
Time is of the essence hereunder. This Note shall be governed by the laws
of the State of North Carolina.
PRESENTMENT AND NOTICE OF DISHONOR ARE HEREBY WAIVED.
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IN WITNESS WHEREOF, the Company has caused this Note to be executed in its
name and attested to by its authorized officers, and its corporate seal to be
hereunto affixed, all as of the date first above written.
COMPANY:
E-COMMERCE SUPPORT CENTERS, INC.,
a North Carolina corporation
ATTEST: By: /s/ Terrence J. Leifheit
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/s/ Clifford A. Clark Terrence J. Leifheit, President
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Clifford A. Clark, Secretary
[CORPORATE SEAL]
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