Exhibit 10.1
SECURED PROMISSORY NOTE
$70,000.00 May 31, 2004
FOR VALUE RECEIVED, the undersigned, Tulix Systems, Inc., a Georgia
corporation ("Maker"), promises to pay to the order of HomeCom Communications,
Inc., a Delaware corporation ("Payee"; Payee and any subsequent holder[s] hereof
are hereinafter referred to collectively as "Holder"), at the office of Payee at
90 Grove Street, Suite 202, Ridgefield, Connecticut 06877, or at such other
place as Holder may designate to Maker in writing from time to time, the
principal sum of SEVENTY THOUSAND AND NO/100THS DOLLARS ($70,000.00).
The principal amount hereof shall be due and payable on May 31, 2005 (the
"Maturity Date").
Interest on the outstanding unpaid principal amount hereof shall accrue at
the rate of seven percent (7.0%) per annum (computed on the basis of a 360-day
year), beginning on the date hereof, and shall be due and payable on the
Maturity Date.
The indebtedness evidenced hereby may be prepaid in whole or in part, at
any time and from time to time, without premium or penalty. Any such prepayments
shall be credited first to any accrued and unpaid interest and then to the
outstanding principal balance hereof.
Time is of the essence of this Note. This Note is secured pursuant to the
terms of that certain Security Agreement, of even date herewith, between Maker
and Payee, as amended, supplemented or restated from time to time (the "Security
Agreement"). It is hereby expressly agreed that in the event that any Event of
Default shall occur under and as defined in the Security Agreement, which Event
of Default is not cured following the giving of any applicable notice and within
any applicable cure period set forth in the Security Agreement, then, and in
such event, the entire outstanding principal balance of the indebtedness
evidenced hereby, together with any other sums advanced hereunder, under the
Security Agreement and/or under any other instrument or document now or
hereafter evidencing, securing or in any way relating to the indebtedness
evidenced hereby, together with all unpaid interest accrued thereon, shall, at
the option of Holder and without notice to Maker, at once become due and payable
and may be collected forthwith, regardless of the stipulated date of maturity.
Upon the occurrence of any Event of Default as set forth herein and during any
period that Maker shall have failed to make payment of any principal or interest
due hereunder, at the option of Holder and without notice to Maker, all accrued
and unpaid interest, if any, shall be added to the outstanding principal balance
hereof, and the entire outstanding principal balance, as so adjusted, shall bear
interest thereafter until paid at an annual rate (the "Default Rate") equal to
the lesser of (i) the rate that is seven percentage points (7.0%) in excess of
the above-specified interest rate, or (ii) the maximum rate of interest allowed
to be charged under applicable law (the "Maximum Rate"), regardless of whether
or not there has been an acceleration of the payment of principal as set forth
herein. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such Event of Default.
In the event this Note is placed in the hands of an attorney for
collection, or if Holder incurs any costs incident to the collection of the
indebtedness evidenced hereby, Maker and any endorsers hereof agree to pay to
Holder an amount equal to all such costs, including without limitation all
reasonable attorneys' fees and all court costs.
Presentment for payment, demand, protest and notice of demand, protest and
nonpayment are hereby waived by Maker and all other parties hereto. No failure
to accelerate the indebtedness evidenced hereby by reason of an Event of Default
hereunder, acceptance of a past-due installment or other indulgences granted
from time to time, shall be construed as a novation of this Note or as a waiver
of such right of acceleration or of the right of Holder thereafter to insist
upon strict compliance with the terms of this Note or to prevent the exercise of
such right of acceleration or any other right granted hereunder or by applicable
law. No extension of the time for payment of the indebtedness evidenced hereby
or any installment due hereunder, made by agreement with any person now or
hereafter liable for payment of the indebtedness evidenced hereby, shall operate
to release, discharge, modify, change or affect the original liability of Maker
hereunder or that of any other person now or hereafter liable for payment of the
indebtedness evidenced hereby, either in whole or in part, unless Holder agrees
otherwise in writing. This Note may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
The indebtedness and other obligations evidenced by this Note are further
evidenced by (i) that certain Asset Purchase Agreement, dated as of March 27,
2003, by and between Maker and Payee and, for purposes of Section 9(b) thereof,
Gia Bokuchava, Nino Doijashvili and Timothy R. Robinson, (ii) the Security
Agreement and (iii) certain other instruments and documents, as may be required
to protect and preserve the rights of Maker and Payee, as more specifically
described in the Security Agreement.
All agreements herein made are expressly limited so that in no event
whatsoever, whether by reason of advancement of proceeds hereof, acceleration of
maturity of the unpaid balance hereof or otherwise, shall the amount paid or
agreed to be paid to Holder for the use of the money advanced or to be advanced
hereunder exceed the Maximum Rate. If, from any circumstances whatsoever, the
fulfillment of any provision of this Note or any other agreement or instrument
now or hereafter evidencing, securing or in any way relating to the indebtedness
evidenced hereby shall involve the payment of interest in excess of the Maximum
Rate, then, ipso facto, the obligation to pay interest hereunder shall be
reduced to the Maximum Rate; and if from any circumstance whatsoever, Holder
shall ever receive interest, the amount of which would exceed the amount
collectible at the Maximum Rate, such amount as would be excessive interest
shall be applied to the reduction of the principal balance remaining unpaid
hereunder and not to the payment of interest. This provision shall control every
other provision in any and all other agreements and instruments existing or
hereafter arising between Maker and Holder with respect to the indebtedness
evidenced hereby.
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This Note is intended as a contract under and shall be construed and
enforceable in accordance with the laws of the State of Delaware, except to the
extent that federal law may be applicable to the determination of the Maximum
Rate. Whenever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note.
Maker hereby irrevocably consents to the jurisdiction of the United States
District Court and of all state courts sitting in New Castle County, Delaware,
for the purpose of any litigation to which Holder may be a party and which
concerns this Note or the indebtedness evidenced hereby. It is further agreed
that venue for any such action shall lie exclusively with courts sitting in New
Castle County, Delaware, unless Holder agrees to the contrary in writing.
HOLDER AND MAKER HEREBY KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF
COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS, PROCEEDINGS, CLAIMS OR
COUNTERCLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, AT LAW OR IN EQUITY,
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT.
As used herein, the terms "Maker" and "Holder" shall be deemed to include
their respective successors, legal representatives and assigns, whether by
voluntary action of the parties or by operation of law.
(Signature page follows.)
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IN WITNESS WHEREOF, Maker, on the day and year first above written, has
caused this Note to be executed under seal.
MAKER:
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TULIX SYSTEMS, INC.,
a Georgia corporation
By: /s/ Gia Bokuchava
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Name: Gia Bokuchava
Title: President and Chief Executive
Officer
[CORPORATE SEAL]
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