Exhibit 10.4
PROMISSORY NOTE
$125,300.00 As of October 12, 1998
FOR VALUE RECEIVED, the undersigned, M. TED DILLARD, whose address is 2016
St. Andrews, Richardson, TX 75082 (herein referred to as "Maker"), promises to
pay to the order of Diversified Corporate Resources, Inc., a Texas corporation
(herein referred to as "Payee"), at 12801 N. Central Expwy., Suite 350, Dallas,
TX 75243, in lawful money of the United States of America, the principal sum of
ONE HUNDRED TWENTY FIVE THOUSAND THREE HUNDRED AND 00/100 ($125,300.00). In
addition to said principal sum, Maker also agrees to pay interest on the unpaid
amount thereof computed from and after the date of this Note until maturity at
the rate of eight percent (8%) per annum (herein called the "Rate"). In no event
shall the Rate exceed the maximum rate of nonusurious interest allowed from time
to time by law as is now, or to the extent allowed by law as may hereafter be,
in effect (herein called the "Highest Lawful Rate"), with adjustments in the
Rate due to changes in the Highest Lawful Rate, to be made on the effective date
of any applicable change.
The unpaid principal balance of and interest on this Note shall be due and
payable in full on October 12, 2001 (herein such date shall be called the
"Maturity Date"). Interest shall be quarterly on the last day of the months of
January, April, July and October beginning January, 1999.
Maker shall be entitled to prepay this Note in whole or in part at any
time or times without penalty. All payments shall be applied first to accrued
and unpaid interest and the balance, if any, to principal.
Notwithstanding the foregoing, if at any time the Rate exceeds the Highest
Lawful Rate, the Rate to accrue on this Note shall be limited to the Highest
Lawful Rate, but any subsequent reductions in the Rate shall not reduce the Rate
below the Highest Lawful Rate until the total amount of interest accrued on this
Note equals the amount of interest which would have accrued if the Rate had at
all times been in effect without reduction because of the ceiling of the Highest
Lawful Rate.
Maker and any and all co-makers, endorsers, guarantors and sureties
severally waive presentment for payment, notice of non-payment, protest, demand,
notice of protest, notice of intention to accelerate, notice of acceleration and
dishonor, diligence in enforcement and indulgences of every kind, and hereby
agree that this Note and the liens securing its payment may be extended and
re-extended and the time for payment extended and re-extended from time to time
without notice to them or any of them, and they severally agree that their
liability on or with respect to this Note shall not be affected by any release
or change in any security at any time existing or by any failure to perfect or
maintain perfection of any security interest in such security.
If the entire unpaid principal balance plus all accrued and unpaid
interest due and owing on this Note is not paid at maturity whether by
acceleration or otherwise and is placed in the hands of an attorney for
collection, or suit is filed hereon, or proceedings are had in probate,
bankruptcy, receivership, reorganization, arrangement or other legal proceedings
for collection hereof, Maker and each other liable party agree to pay Payee its
collection costs, including a reasonable amount for attorneys' fees, but in no
event to exceed the maximum amount permitted by law. Maker and each other liable
party are and shall be directly and primarily,
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jointly and severally, liable for the payment of all sums called for
hereunder, and Maker and each other liable party hereby expressly waive
bringing of suit and diligence in taking any action to collect any sums owing
hereon and in the handling of any security hereunder, and Maker and each
other liable party hereby consent to and agree to remain liable hereon
regardless of any renewals, extensions for any period or rearrangements
hereof, or any release or substitution of security herefore, in whole or in
part, with or without notice, from time to time, before or after maturity.
Regardless of any provisions contained in this Note, or any other
instrument executed in connection herewith, no holder of this Note shall ever be
entitled to receive, collect or apply, as interest on the indebtedness evidenced
hereby, any amount in excess of the maximum rate of interest permitted to be
charged by applicable law, and, in the event any such older ever receives,
collects or applies as interest, on the indebtedness evidenced hereby, any
amount in excess of the maximum rate of interest permitted to be charged by
applicable law, such amount which would be excessive interest shall be deemed a
partial prepayment of principal and treated hereunder as such; and, if the
indebtedness evidenced hereby is paid in full, any remaining excess shall
forthwith be paid to Maker. In determining whether or not the interest paid or
payable, under any specific contingency, exceeds the Highest lawful Rate, the
holder shall, to the maximum extent permitted under applicable law, (a)
characterize any non-principal payment as an expense, fee or premium rather than
as interest, (b) exclude voluntary prepayment and the effects thereof, and (c)
amortize, prorate, allocate and spread, in equal parts, the total amount of
interest throughout the entire contemplated term of this Note so that the
interest rate is uniform throughout the entire term of this Note; provided that
if this Note is paid and performed in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence thereof exceeds the Highest Lawful Rate, the holder shall refund to
Maker the amount of such excess, and, in such event, no holder shall be subject
to any penalties provided by any laws for contracting for, charging or receiving
interest in excess of the Highest Lawful Rate.
This Note is secured by that certain Security Agreement dated as of
October 12, 1998 executed and delivered by Maker to Payee covering 35,400 shares
of common stock of Maker. Upon the sale of any of the collateral pledged to
secure this note, the proceeds thereof shall be applied to the principal
amount of the Note.
This Note is also secured by all security agreements, collateral
assignments, guaranties, deeds of trust and lien instruments executed by Maker
in favor of Payee or any other holder of this Note, including those executed
simultaneously herewith, those executed heretofore and those hereafter executed.
This Note has been executed and delivered in and shall be construed in
accordance with and governed by the laws of the State of Texas.
MAKER:
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M. TED DILLARD
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