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EXHIBIT 10.4
SECOND AMENDED AND RESTATED PROMISSORY NOTE (THIS "NOTE")
(SECURED BY SECURITY AGREEMENT)
Effective Date: ................. September 4, 1995
Makers: ......................... Jerald L. Broussard and wife, Mary Catherine
Broussard
707 Masters Way
Kingwood, Harris County, Texas 77339
(collectively, the "Makers" and individually,
a "Maker")
Payee: .......................... Administaff, Inc., a Delaware corporation
(sometimes hereinafter referred to as the
"Payee")
Place for Payment: .............. 19001 Crescent Springs Drive
(including county)............. Kingwood, Montgomery County, Texas or any
other place that Payee may designate
in writing.
Principal Amount:................ One Hundred Forty-One Thousand Three Hundred
Sixty and No/100 Dollars ($141,360.00)
Annual Interest Rate on
Unpaid Principal from Date: ... Six and 83/100 Percent (6.83%)
Annual Interest Rate on
Matured Unpaid Amounts: ....... Six and 83/100 Percent (6.83%)
Terms of Payment (principal and interest):
The principal of this Note shall be due and payable in full on
September 4, 2000.
Interest shall be due and payable annually as interest accrues,
beginning on September 4, 1996, and continuing regularly and annually
thereafter on the 4th day of September of each year thereafter until
September 4, 2000, when, as stated above, the entire principal balance
of this Note, and all accrued, unpaid interest thereon shall be due and
payable in full. Interest installments shall be calculated on the
unpaid principal balance from time to time outstanding hereunder, from
the date following the last interest payment date through the date of
payment.
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Security for Payment:
A security interest created and granted in the following Second Amended
and Restated Security Agreement (the "Security Agreement"):
Date: ........................... June 24, 1998
Debtors: ........................ Jerald L. Broussard and wife, Mary Catherine
Broussard
707 Masters Way Kingwood,
Harris County, Texas 77339
Secured Party: .................. Administaff, Inc.
19001 Crescent Springs Drive
Kingwood, Montgomery County, Texas
77339 (sometimes hereinafter
referred to as the "Secured Party")
Collateral Location: ............ Secretary of Administaff, Inc.
(including County) 19001 Crescent Springs Drive
Kingwood, Montgomery County, Texas 77339
Collateral Description: ......... Stock Certificate No. ASF 2179 (6,500 shares)
and such other stock certificates
representing shares of common stock
issued by Administaff, Inc., a
Delaware corporation, as may from
time to time be held by Secured
Party as security for the
indebtedness evidenced hereby and
any and all stock certificate(s)
issued in replacement, substitution,
or redemption thereof or as a result
of any share split or reverse share
split, together with all proceeds
thereof, all as more fully described
in the Security Agreement.
Each Maker jointly and severally promises to pay to the order of Payee
the principal balance of this Note and interest accrued thereon, at the place
for payment, according to the terms of payment and at the rates stated above.
Makers shall have the right to prepay all or any portion of the outstanding
principal balance of this Note.
If Makers default in the payment of this Note or under any term of the
Security Agreement, or in the performance of any obligation under any other
agreement, instrument or other document executed as security for, or otherwise
in connection with, this Note, whether now existing or hereafter executed
(collectively, the "Other Documents"), and such default continues after the
holder
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of this Note gives Makers notice of such default and the time within which it
must be cured, as may be required by law or by written agreement, then the
holder of this Note may, at its option, declare the unpaid principal balance
hereof and accrued, unpaid interest thereon immediately due and payable in full
without notice of any kind. Makers and each surety, endorser, and guarantor
waive all demands for payment, presentations for payment, notices of intention
to accelerate maturity, notices of acceleration of maturity, protests, notices
of protests, and all other notices of whatever kind, to the extent permitted by
law.
If any one or more of this Note, the Security Agreement, or any of the
Other Documents are given to an attorney for collection or enforcement, or if
suit is brought for collection or enforcement, or if this Note is collected
through probate, bankruptcy, or other judicial proceeding, then Makers shall pay
the holder of this Note all costs of collection and enforcement, including
reasonable attorney's fees and court costs of not less than 10% of the amount
due under this Note, in addition to other amounts due.
It is the intention of Makers and Payee to comply strictly with all
applicable usury laws. Interest on the debt evidenced by this Note, however
denominated, shall not exceed the maximum amount of nonusurious interest that
may be contracted for, taken, reserved, charged, collected, or received under
applicable law; any interest collected or received in excess of such maximum
nonusurious amount shall be deemed a mistake and credited against the unpaid
principal balance hereof then outstanding or, if the principal hereof has been
repaid, refunded to Makers, and the effective interest rate and amount
applicable to this Note shall automatically be reduced to the maximum
nonusurious contract rate and amount of interest allowed for this Note under
applicable law. The foregoing provision shall override all demands and charges,
the effect of all prepayments, and all contrary provisions, if any, in this
Note, the Security Agreement and the Other Documents.
Each Maker is jointly and severally liable for all obligations set
forth in this Note.
It is the express understanding of the Makers and Payee that, any
judgment for the repayment of the indebtedness evidenced hereby or interest
thereon will be enforced first against the collateral furnished pursuant to the
Security Agreement (the "Collateral") and, second, only to the extent that the
indebtedness evidenced hereby or any interest thereon is not satisfied by the
Collateral, against Makers or either of them personally or any property of
Makers or either of them to the full extent of such deficiency, in any action to
collect any amount payable hereunder or to enforce performance of any of the
other provisions of the Security Agreement or any of the Other Documents;
provided, however:
(a) Nothing herein contained shall be construed as limiting or
impairing enforcement against the Collateral or otherwise prohibiting
Payee from exercising any and all remedies which this Note, the
Security Agreement or the Other Documents permit, so long as the
exercise of any remedy shall only extend to execution against or
recovery out of any property of Makers or either of them personally in
addition to the Collateral in any action to foreclose
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or to collect any amounts payable hereunder at such time as the
Collateral is fully exhausted and then only to the extent any
deficiency was not satisfied by the Collateral;
(b) Makers shall be fully and personally liable, jointly and severally,
for any and all costs, expenses and other sums payable to third parties
(including, without limitation, attorney's fees and court costs) paid
or incurred by Payee to enforce this Note, to protect or enforce
Payee's security interest in the Collateral or otherwise to enforce the
Security Agreement, or to enforce the Other Documents, together with
interest thereon at the rate of ten percent per annum.
This Note is executed to amend and restate in its entirety that certain
Amended and Restated Promissory Note (Secured by Security Agreement) dated as of
September 4, 1995 in the original principal amount of $141,360.00 executed by
Jerald L. Broussard and wife, Mary Catherine Broussard payable to the order of
Payee (the "Amended Note"), the purpose of such amendment and restatement being,
generally, to (i) reflect the Makers' and the Payee's agreement to provide that
the indebtedness evidenced hereby shall be recourse to the extent provided
herein and in the Security Agreement; and (ii) reflect the Makers' and the
Payee's current agreement set forth in the Security Agreement with respect to
the share certificates held and to be held by Secured Party as Collateral from
time to time. Makers hereby acknowledge and agree that the principal amount of
$141,360.00, together with accrued, unpaid interest thereon is fully due and
owing under the Amended Note, and that such amounts (both principal and accrued
unpaid interest thereon) are fully valid and subsisting as of the date of
execution hereof and are not subject to set-off, deduction, defense, or
counterclaim of any kind whatsoever.
When the context requires, singular nouns and pronouns include the
plural and vice versa.
EXECUTED the 23rd day of June, 1998 to be effective as of September 4,
1995.
/s/ JERALD L. BROUSSARD /s/ MARY C. BROUSSARD
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Jerald L. Broussard Mary Catherine Broussard
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