Exhibited 10.3
PROMISSORY NOTE
$3,200,000 January 31, 2001
New York, New York
FOR VALUE RECEIVED, GLOBAL TECHNOLOGIES, LTD., a Delaware corporation
having its principal address at 1811 Chestnut Street, Suite 120, Philadelphia,
PA 19103 ("GTI"), hereby promises to pay to the order of KOCH INVESTMENT GROUP
LTD. (hereinafter referred to, together with each subsequent Payee hereof, as
"PAYEE"), having an address at 20 E. Greenway Plaza, Houston, TX 77046 or at
such other address as may be designated from time to time hereafter by the
Payee, on or before January 31, 2003 (the "MATURITY DATE"), in lawful money of
the United States of America and in immediately available funds, the sum of
THREE MILLION TWO HUNDRED THOUSAND DOLLARS ($3,200,000.00) (the "PRINCIPAL
AMOUNT"), together with the Interest (as defined below) on the Principal Amount
as set forth herein. This Note (this "NOTE") is being delivered in connection
with that certain Agreement, dated as of the date hereof, between GTI, Payee and
Advantage Fund II Ltd. (the "AGREEMENT").
1. INTEREST. Interest on the Principal Amount outstanding on this Note
shall accrue daily at the rate of eight percent (8%) per annum, calculated for
the actual number of days elapsed based on a 360-day year (the "INTEREST", and
together with the Principal Amount, the "OUTSTANDING AMOUNT"). Interest shall be
paid to Payee each quarter in arrears on March 31, June 30, September 30 and
December 31 of each year while the Principal Amount is outstanding, commencing
on June 30, 2001.
2. PRINCIPAL AMOUNT. The Principal Amount shall be due and payable on the
Maturity Date. GTI shall not be required to pay all or any portion of the
Principal Amount prior to the Maturity Date except as may be required in
accordance with Section 5 of this Note. Any payment made by GTI under this Note
shall be made without setoff, counterclaim, deduction or defense of any kind all
of which are hereby waived by GTI to the fullest extent permitted under law.
3. DEFAULT RATE. If any amount due hereunder is not paid when due, such
amount shall bear interest (in addition to the Interest, if any) at a per annum
rate equal to fifteen percent (15%) or, if less, the maximum rate permitted by
law, until such amount is paid in full.
4. PREPAYMENT. This Note may be prepaid in whole or in part at any time
without penalty or premium. Any such prepayment shall be applied first to any
accrued and unpaid Interest and thereafter to any unpaid Principal Amount.
5. ACCELERATION OF PAYMENT. This Note shall automatically become due, and
the Outstanding Amount shall become immediately payable in full without any
action on the part of GTI or the Payee, (a) in the event GTI (i) becomes
subject, as debtor, to any voluntary bankruptcy or insolvency proceeding, (ii)
becomes subject, as debtor, to any involuntary bankruptcy which has not been
dismissed within 60 days of the filing of such bankruptcy, (iii) makes an
assignment for the benefit of its creditors, (iv) has a receiver or trustee
appointed with respect to GTI or any of its properties, assets or business, (v)
defaults under the terms of the Agreement or any of the Transaction Documents
unless such default shall be fully cured by the 20th day following such default,
or (vi) GTI enters into any agreement to sell all or substantially all of its
assets or to merge or consolidate with or into another person or entity, or (b)
in the event of any breach by GTI of any of its covenants or agreements
contained in this Note which continues for more than 30 days after written
notice thereof to GTI.
6. AFFIRMATIVE WAIVERS. GTI hereby (a) waives presentment, demand, protest,
notice of protest and/or dishonor, and all other demands or notices of any sort
whatsoever with respect to this Note, other than the demand to it for payment of
the Outstanding Amount under this Note, and (b) agrees to pay all costs and
expenses, including reasonable attorneys' fees, which may be incurred in the
collection of this Note, or any part thereof or in preserving, securing
possession of, and realizing upon any security for this Note.
7. AMENDMENTS, ETC. No amendment or waiver of any provision of this Note,
nor consent to any departure by GTI herefrom, shall in any event be effective
unless the same shall be in writing and signed by Payee, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
8. NO WAIVER; REMEDIES. No failure on the part of Payee to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
9. USURY. If it shall be found that any interest outstanding hereunder
shall violate applicable laws governing usury, the applicable rate of interest
outstanding hereunder shall automatically and without any action by the GTI or
Payee be reduced to the maximum permitted rate of interest under such law.
10. PARTIAL INVALIDITY. In the event that any provision hereof is, for any
reason and to any extent, determined by a court of competent jurisdiction to be
invalid or unenforceable with respect to any person, entity or circumstance,
then neither the remainder of this Note, nor the application of the provision to
other persons, entities, or circumstances, shall be affected thereby, but
instead shall be enforceable to the maximum extent permitted by law.
11. BINDING EFFECT. This Note shall be binding upon GTI and its successors
and shall inure to the benefit of Payee and its successors and assigns. The term
"Payee" as used herein, shall also include any endorsee, assignee or other Payee
of this Note.
12. GOVERNING LAW.
a. This Note shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving
effect to the conflict of law principles thereof.
b. Any legal action or proceeding in connection with or arising
under this Note shall be brought exclusively in the courts
in New York County, New York and, by execution and delivery
of this Note, GTI and Payee hereby irrevocably accepts for
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itself and in respect of its property, generally and
unconditionally, the jurisdiction of the courts in New York
County. GTI and Payee hereby further irrevocably waives any
claim that any such court lacks jurisdiction over such
party, and agrees not to plead or claim, in any legal action
or proceeding with respect to this Note brought in any of
the aforesaid courts, that any such court lacks jurisdiction
over such person.
c. GTI and Payee hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any
of the aforesaid actions or proceedings arising out of or in
connection with this Note brought in the courts referred to
in subsection (a) above and hereby further irrevocably
waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
13. WAIVER OF JURY TRIAL. GTI KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS NOTE, OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY THERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR PAYEE TO ENTER INTO THE LOAN TRANSACTION
EVIDENCED BY THIS NOTE.
14. LOST OR STOLEN NOTE. If this Note is lost, stolen, mutilated or
otherwise destroyed, GTI shall execute and deliver to Payee a new promissory
note containing the same terms, and in the same form, as this Note. In such
event, GTI may require Payee to deliver to GTI an affidavit of lost instrument
and customary indemnity in respect thereof as a condition to the delivery of any
such new promissory note.
15. DUE AUTHORIZATION. This Note has been duly authorized, executed and
delivered by GTI and is the legal obligation of GTI, enforceable against GTI in
accordance with its terms.
16. INDEMNITY. GTI shall indemnify and hold Payee harmless from and against
any and all losses, liabilities, claims, damages or expenses arising out of this
Note, including, without limitation, the fees and expenses of counsel.
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IN WITNESS WHEREOF, GTI has caused this Note to be duly executed and
delivered as of the date first set forth above.
GLOBAL TECHNOLOGIES, LTD.
By: ____________________________________
Name:
Title:
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