Exhibit 10.6
INTEREST BEARING NON-CONVERTIBLE
INSTALLMENT PROMISSORY NOTE
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$1,500,000 , Alabama
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January , 2006
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FOR VALUE RECEIVED, the undersigned (the "Maker") promises to pay to the
order of VICIS CAPITAL MASTER FUND or its assigns (the "Holder"), the principal
sum of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000). The
rights, claims, duties and liabilities of the parties hereto are subject to and
controlled by the following terms and conditions:
1. Method and Place of Payment.
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Payments of principal and interest shall be made in lawful money of the
United States of America at the principal place of business of the Holder as
specified below, or at such other location as it may hereafter designate.
2. Principal and Interest Payments.
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The entire principal amount of this note (the "Note"), together with
interest accruing thereon at an annual rate of interest of twelve percent (12%)
shall be payable in eighteen (18) equal installments, each of Ninety Six
Thousand Eight Hundred Eighty Six and 27/100 Dollars ($96,886.27), the first
installment to be payable on July 12, 2006 and monthly thereafter. Each payment
shall first be applied in satisfaction of the interest then accrued and any
balance in amortization of the principal debt.
Nothing herein, nor any transaction related hereto, shall be construed to
operate so as to require the Maker to pay interest at a greater rate than shall
be lawful. Should any interest or other charges paid by the Maker in connection
with the loan evidenced by this Note result in computation or earning of
interest in excess of the maximum contract rate of interest which is legally
permitted under applicable New York law or federal preemption statute, then any
and all such excess is hereby waived by the Holder and shall be automatically
credited against and in reduction of the balance due hereunder, and any portion
which exceeds such balance shall be paid by the Holder to the Maker. Anything
contained herein to the contrary notwithstanding, if for any reason the
effective rate of interest on this Note should exceed the maximum lawful rate,
the effective rate shall be deemed reduced to and shall be such maximum lawful
rate.
3. Prepayment.
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The Maker shall have the privilege and option to pay the entire principal
amount of this Note or any part thereof, together with accrued interest
calculated to the date of such payment, at any time prior to the various
maturity dates of the installments due hereunder; provided, however, that if any
prepayment is made, there shall be paid therewith, as consideration for the
privilege of making such payment(s), a penalty equal to one percent (1%) of the
principal amount of such prepayment(s). Such prepayment penalty shall be due and
payable whether the prepayment(s) are made voluntarily or upon acceleration of
this Note. Any prepayments hereunder shall be applied to the last maturing
installment due under this Note. Prepayments shall not affect or vary the duty
of the Maker to pay the installments provided in paragraph 2 when due, and they
shall not affect or impair the right of the Holder to accelerate the maturity
hereof and to declare the entire unpaid principal and interest due and payable
as elsewhere provided in this Note.
4. Default; Acceleration of Obligation; Interest.
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In the event of a failure by the Maker to timely satisfy any incremental
payment of principal or interest within ten (10) days of its due date, the
entire obligation of the Maker shall be in default, the unpaid principal and
interest balances shall be immediately due and payable and interest on the
principal balance shall thereafter accrue at the maximum annual rate allowable
by law.
5. Collection.
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Should it become necessary to collect this Note through an attorney, the
Maker shall pay all costs incurred by or accruing to the Holder in making such
collection, including a reasonable attorney's fee.
6. Waiver.
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The Maker and any guarantor, surety or endorser of this Note, as well as
any other person or entity who shall become liable for the payment hereof, each
expressly waives presentment for payment, notice of non-payment, protest and
notice of protest, and any other notice which might otherwise be required in
connection with the delivery, acceptance, performance, default or enforcement of
the payment of this Note. The Holder shall not be deemed by any act or omission
to have waived any right or remedy hereunder unless and only to the extent
expressed in a written instrument dated subsequent to the date hereof and
executed by the Holder, and any such waiver so expressed with respect to a
particular event shall not be interpreted as having a continuing effect on or as
a waiver of any right or remedy with respect to any subsequent event.
7. Notices.
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All notices or other communications required or permitted to be given
pursuant to this Note shall be in writing and shall be considered properly given
or made if hand delivered, mailed from within the United States by certified
mail, or sent by overnight delivery service:
a. if to the Holder:
Vicis Capital Master Fund
Attn: Shad Stastney
126 E. 56th Street, 7th Floor
New York, New York 10022
Telephone: (212) 909-4600
Facsimile : (212) 909-4601
b. if to the Maker:
Cytation Corporation
Attn: Charles G. Masters
4902 Eisenhower Blvd., Suite 185
Tampa, Florida 33634
Telephone: (813) 885-5744
Facsimile: (813) 885-5911
or to such other address as either party shall have furnished to the other. All
notices shall be deemed given when deposited in the U.S. mail or given to an
independent delivery service.
8. Entire Agreement.
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This Note and any other document expressly identified herein constitute the
entire understanding of the parties with respect to the subject matter hereof,
and no amendment, modification or alteration of the terms hereof shall be
binding unless the same be in writing, dated subsequent to the date hereof and
duly approved and executed by the Maker and Holder.
9. Governing Law and Venue.
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The Maker acknowledges and agrees that irrespective of where executed, this
Note shall be construed in accordance with the laws of the State of New York,
and venue for any legal action which may be brought hereunder shall be deemed to
lie in New York County, New York.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned Maker has executed this Note as of the
date first written above.
CYTATION CORPORATION, a Delaware corporation
/s/ Charles G. Masters
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By: Charles G. Masters
Its: Chief Executive Officer
[SIGNATURE PAGE TO INTEREST BEARING NON-CONVERTIBLE INSTALLMENT PROMISSORY NOTE]