Exhibit 4.3
PROMISSORY NOTE
$750,000.00 Arlington, Texas August 3, 2001
FOR VALUE RECEIVED, the undersigned, EMERGISOFT HOLDING, INC., a Nevada
corporation ("Maker"), promises to pay to the order of Berlwood Five, Ltd., a
Texas limited partnership (herein together with all subsequent holders hereof
called "Holder") the principal sum of SEVEN HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($750,000.00), or such lesser amount as may be advanced in lawful money
of the United States of America, with interest thereon calculated from date
until maturity at the rate per annum hereinafter provided, both principal and
interest payable at 1201 North Watson Road, Suite 145, Arlington, Texas 76006.
Interest on the principal balance hereof from time to time remaining
unpaid prior to maturity shall accrue at a rate per annum equal to ten percent
(10%), calculated on the basis of actual days elapsed over a year composed of
360 days, or the maximum rate allowed by law.
The principal and accrued interest of this Note is payable in one
installment on April 30, 2002.
All past due principal and interest shall bear interest from maturity
at the rate of eighteen percent (18%) per annum, calculated, notwithstanding any
other provision hereof, on a 365 or 366 day year, as applicable, commencing on
the date on which demand for payment shall be made in writing.
Until maturity, Maker shall have the right to borrow, at any time and
from time to time without premium or penalty, amounts up to but not exceeding at
any one time outstanding the above stated principal amount of this Note. The
advances hereunder made by Holder to Maker and all payments of the principal
thereof and interest thereon may be noted by Holder on the schedule attached
hereto, or on a continuation of such schedule attached hereto or similar
computer-generated payment schedule; provided, however, that the failure of
Holder to make any such notation or any error in making such notation shall not
limit or otherwise affect the obligations of Maker hereunder.
Each maker, surety, endorser, guarantor and/or other party liable
hereon, and all parties assuming any payment hereof, severally waives grace,
presentment, protest, notice of every type, including, without limitation,
notice of default, notice of intention to accelerate, notice of acceleration,
and notice of protest, and consents that time of payment may be extended without
notice. Each maker, surety, endorser, guarantor and/or other party liable hereon
agrees that their liability on this Note shall be joint and several with that of
any other party obligated hereon, shall not be affected by any renewal or
extension of this Note, by any indulgences, or by any release or change in any
security for this Note, and hereby consents to any and all renewals, extensions,
indulgences, releases or changes, regardless of the number. It is agreed that
the waiving by Holder of any default of Maker shall be limited to the particular
incident, and shall not be deemed to waive any other default of the same or
other covenants hereunder. It is hereby specially agreed that if this Note is
placed in the hands of an attorney for collection, or if collected by suit or
through bankruptcy proceedings, Maker agrees to pay reasonable attorney's fees
in addition to the principal and interest then due hereon, and together with all
costs of collection.
Regardless of any provision contained in this Note, the Holder hereof
shall never be entitled to receive, collect or apply, as interest on this Note,
any amount in excess of the maximum interest permitted by law on corporate
obligations (the "Maximum Rate"). In determining whether or not the interest
paid or payable under any specific contingency exceeds the Maximum Rate, Maker
and the Holder hereof shall, to the maximum extent permitted under applicable
laws, (i) characterize any non-principal payment
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as an expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread, in proportionate parts, the total amount of interest paid or payable
throughout the entire contemplated term of this obligation so that the effective
interest rate is uniform throughout the entire term of this Note. If the Holder
hereof ever receives, collects or applies as interest any amount in excess of
the Maximum Rate, then any such amount which would be excessive interest shall
be deemed a partial prepayment of principal, and treated hereunder as such; and
if the principal balance of the indebtedness evidenced hereby has been paid in
full, then the Holder hereof shall refund to Maker the amount of such excessive
interest.
If any of the terms of this Note conflict in any respect with those of
any other document or instrument referred to herein or executed, in connection
herewith, the terms of this Note shall control.
Any legal action or proceeding against Maker with respect to this Note
may be brought in the courts of the State of Texas or the United States of
America in Texas. By the execution and delivery of this Note, Maker hereby
submits to each such jurisdiction. Nothing herein contained shall affect the
jurisdiction of any other court.
EXECUTED as of the 3rd day of August, 2001.
EMERGISOFT HOLDING, INC.,
a Nevada corporation
By: /s/Dan Witte
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Name: Dan Witte
Chief Operating Officer/Chief
Financial Officer