Exhibit 2.3
PROMISSORY NOTE
U.S. $120,986.26 Fort Lauderdale, Florida
December 30, 2004
1. Parties.
1.0 RBE & SJC, Inc.; and
1.1 RICHARD B. ERENS , Personal Guarantor (the "Borrower").
1.2 ADVANCED IMAGING SYSTEMS, LLC (the "Lender").
2. Borrower's Promise to Pay, for value received, Borrower promises
to pay to the order of Lender, its successors or assigns, One hundred twenty
thousand nine hundred eighty-six dollars and twenty six cents ($120,986.26) (the
"Principal"), or so much thereof as may be advanced hereunder, plus interest
(the "Interest") on the Principal from time to time remaining unpaid.
3. Payment.
3.1. At the time of making this Note, interest shall be fixed
and payable at the annual rate of 6% per annum (the "Applicable Interest Rate")
provided no default shall have occurred in this Note the interest rate on this
Note shall be the Applicable Interest Rate.
3.2. Upon default in this Note, Interest shall be payable at
the per annum rate of eighteen percent (18%).
3.3. Interest shall be calculated on the basis of the actual
number of days elapsed divided by 365. Borrower shall pay monthly installments
of Principal and Interest in an amount equal to Five thousand three hundred
sixty four dollars and eighty-three cents ($5,364.83) commencing on the 1st day
of February, 2005 and on the first day of each and every month thereafter until
the sums as described herein are paid in full.
3.4. The entire unpaid Principal and any accumulated unpaid
Interest thereon shall be due and payable on the 1st day of January, 2007.
3.5. All payments hereunder shall be made in money of the
United States of America.
3.6. In the event that the Applicable Interest Rate or the
Default Rate exceeds the maximum rate of interest allowed by applicable law, as
amended from time to time, in any interest period during the initial term or any
extension of this Note, only the maximum rate of interest allowed shall then be
charged but thereafter in any interest period or periods during which the rate
is less than the maximum rate allowed by applicable law, as amended from time to
time, the Applicable Interest Rate and the Default Rate shall be increased so
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that Lender, its successors or assigns, may collect interest in such amount as
may have been charged pursuant to the terms of this Note, but which was not
charged because of the limitation imposed by law.
3.7. It is the intent of the parties hereto that in no event
shall the amount of interest due or payment in the nature of interest payable
hereunder exceed the maximum rate of interest allowed by applicable law, as
amended from time to time, and in the event any such payment is paid by the
Borrower or received by the Lender, then such excess sum shall be credited as a
payment of Principal, unless the Borrower elects to have such excess sum
returned to it forthwith.
4. Application of Payment. So long as no default has occurred in this
Note, all payments hereunder shall first be applied to Interest, then to
Principal Upon default in this Note, all payments hereunder shall first be
applied to costs pursuant to Section 8.3, then to Interest and the remainder to
Principal.
5. Prepayment This Note may be prepaid in whole or in part in
increments of $10,000.00 without penalty, provided Borrower gives Lender at
least five (5) days prior written notice thereof Any prepayment shall be
accompanied by an amount equal to the Interest accrued thereon to the date of
receipt of such prepayment in collected funds. [Prepayments shall be applied in
the inverse order of Principal payments required by this Note.]
6. Other Instruments. The term "Loan Documents" shall mean all and
any of the documents now or hereafter executed by Borrower, by others, or by
Borrowers and others, in favor of Lender, which wholly or partly secure or are
executed in connection with this Note, including, but not limited to, the
Security Agreements of even date herewith from Borrower in favor of lender
encumbering certain property described therein, of Borrower.
7. Place of Payment. All payments to Lender hereunder shall be made
at 6689 NW 16th Terrace, Florida or such other place as Lender may from time to
time designate in writing.
8. Default.
8.1. If Lender deems itself insecure or if any payment of
Principal, Interest, or other sum due Lender hereunder or under any of the
documents related hereto is not paid as and when due, or if any other default
occurs or if any obligation of Borrower is not fully performed, then this Note
shall be in default.
8.2. Upon default in this Note, the Lender, at its option, may
declare the entire unpaid Principal balance of this Note, together with accrued
Interest, to be immediately due and payable without notice or demand.
8.3. In addition to payments of Interest and Principal, if
there is a default in this Note the Lender shall be entitled to recover from the
Borrower all of the Lender's costs of collection, including the Lender's
attorneys' fees, paralegals' fees and legal assistants' fees (whether for
services incurred in collection, litigation, bankruptcy proceedings, appeals, or
otherwise), and all other costs incurred in connection therewith.
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9. Late Charge. A late charge of five percent (5%) of any payment
required hereunder shall be imposed on each and every payment, including the
final payment due hereunder, not received by the Lender within ten (10) days
after it is due. The late charge is not a penalty, but liquidated damages to
defray administrative and related expenses due to such late payment. The late
charge shall be immediately due and payable and shall be paid by the Borrower to
the Lender without notice or demand. This provision for a late charge is not and
shall not be deemed a grace period, and Lender has no obligation to accept a
late payment. Further, the acceptance of a late payment shall not constitute a
waiver of any default then existing or' thereafter arising in this Note.
10. Waivers. The Borrower and any endorsers, sureties, guarantors, and
all others who are, or may become liable for the payment hereof severally: (a)
waive presentment for payment, demand, notice of demand, notice of non-payment
or dishonor, protest and notice of protest of this Note, and all other notices
in connection with the delivery, acceptance, performance, default, or
enforcement of the payment of this Note, (b) consent to all extensions of time,
renewals, postponements of time of payment of this Note or other modifications
hereof from time to time prior to or after the maturity date hereof, whether by
acceleration or in due course, without notice, consent or consideration to any
of the foregoing, (c) agree to any substitution, exchange, addition, or release
of any of the security for the indebtedness evidenced by this Note or the
addition or release of any party or person primarily or secondarily liable
hereon, (d) agree that the Lender shall not be required first to institute any
suit, or to exhaust its remedies against the undersigned or any other person or
party to become liable hereunder or against the security in order to enforce the
payment of this Note and (e) agree that, notwithstanding the occurrence of any
of the foregoing (except by the express written release by Lender of any such
person), the undersigned shall be and remain, jointly and severally directly and
primarily liable for all sums due under this Note.
11. Set-Offs. The Borrower and any endorsers, sureties, guarantors,
and all others who are, or who may become liable for the payment hereof,
severally expressly grant to the Lender a continuing first lien security
interest in and authorize and empower the Lender, at its sole discretion, at any
time after the occurrence of a default hereunder to appropriate and, in such
order as Lender may elect, apply to the payment hereof or to the payment of any
and all indebtedness, liabilities and obligations of such parties to the Lender
or any of the Lender's affiliates, whether now existing or hereafter created or
arising or now owned or howsoever after acquired by Lender or any of Lender's
affiliates (whether such indebtedness, liabilities and obligations are or will
be joint or several, direct or indirect, absolute or contingent, liquidated or
unliquidated, matured or unmatured, including, but not limited to, any letter of
credit issued by Lender for the account of any such parties), any and all money,
or collateral of any such parties now or hereafter in the possession of the
Lender.
The Borrower shall be entitled to a right of "set-off" against
this Promissory Note resulting from the actual breach of any of the Lender's
representations and/or warranties as "Seller" in the certain Asset Purchase
Agreement ("Agreement") of even date and as otherwise consistent with Article IX
of that Agreement.
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12. Submission to Jurisdiction. Borrower, and any endorsers, sureties,
guarantors and all others who are, or who may become, liable for the payment
hereof severally, irrevocably and unconditionally (a) agree that any suit,
action, or other legal proceeding arising out of or relating to this Note may be
brought, at the option of the Lender, in a court of record of the State of
Florida in Broward County, in the United States District Court for the Southern
District of Florida, or in any other court of competent jurisdiction; (b)
consent to the jurisdiction of each such court in any such suit, action or
proceeding; and (c) waive any objection which it or they may have to the laying
of venue of any such suit, action, or proceeding in any of such courts,
13. Miscellaneous Provisions
13.1. The term Lender as used herein shall mean any holder of
this Note.
13.2. Time is of the essence in this Note.
13.3. The captions of sections of this Note are for convenient
reference only, and shall not affect the construction or interpretation of any
of the terms and provisions set forth in this Note.
13.4. If more than one person signs this Note, each is and
shall be jointly and severally liable hereunder; and if Borrower is a general
partnership, then all partners in Borrower (and if Borrower is a limited
partnership then all general partners in Borrower) shall be jointly and
severally liable hereunder, notwithstanding any contrary provision in the
partnership laws of the State of Florida.
13.5. This Note shall be construed, interpreted, enforced and
governed by and in accordance with the laws of the State of Florida (excluding
the principles thereof governing conflicts of law), and federal law, in the
event federal law permits a higher rate of interest than Florida law.
13.6. If any provision or portion of this Note is declared or
found by a court of competent jurisdiction to be unenforceable or null and void,
such provision or portion thereof shall be deemed stricken and severed from this
Note, and the remaining provisions and portions thereof shall continue in full
force and effect.
13.7. This Note may not be amended, extended, renewed or
modified nor shall any waiver of any provision hereof be effective, except by an
instrument in writing executed by unauthorized officer of the Lender: Any waiver
of any provision hereof shall be effective only in the specific instance and for
the specific purpose for which given.
14. Personal Guarantee. Repayment of this Promissory Note and the debt
it evidences is, and shall continue to be personally guaranteed by Richard B.
Erens to the extent of the outstanding unpaid balance and accrued unpaid
interest until such loan debt shall be paid fully and finally repaid.
15. Waiver of Trial by Jury. LENDER AND BORROWER HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY'AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A
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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 OTHER
RELATED DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO, THIS PROVISION IS A
MATERIAL INDUCEMENT FOR LENDER AND BORROWER. ENTERING INTO THE SUBJECT
TRANSACTION.
THE PROPERTY FLORIDA DOCUMENTARY STAMP TAX HAS BEEN PAID ON THIS NOTE.
RBE & SJC, INC.
(SEAL)
By: /s/ RICHARD B. ERENS
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Richard B. Erens, President
Attest:
By: /s/ RICHARD B. ERENS
------------------------------------
Richard B. Erens, Secretary
Witness Signatures:
/s/ RENEE M. TOWNE By: /s/ RICHARD B. ERENS
- -------------------------------- ------------------------------------
Print Name: Renee M. Towne Richard B. Erens, Personal Guarantor
Witness Signatures:
/s/ MINTRANI SEERAM
- --------------------------------
Print Name: Mintrani Seeram
STATE OF FLORIDA )
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 30th day of December,
2004 by Richard B. Erens, personally known to me or have produced ______________
as identification and who ( ) did or ( x ) did not take an oath.
My Commission Expires: /s/ RENEE M. TOWNE
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Notary Public
State of Florida at Large
Renee M. Towne
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Print Name of Notary
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