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EXHIBIT 10.1
SECURED PROMISSORY NOTE
$1,250,000.00 June 16, 2000
FOR VALUE RECEIVED, the undersigned, H.T.E., INC., a Florida
corporation ("H.T.E."), hereby promises to pay to the order of The City of
Tacoma, Washington, a municipality in the State of Washington ( the "City"), at
such times and in such amounts as described herein (the "Note"), the principal
sum of ONE MILLION TWO HUNDRED FIFTY-THOUSAND DOLLARS ($1,250,000.00), together
with interest thereon at the rate set forth herein. This Note is being executed
in connection with that certain Settlement Stipulation between H.T.E. and the
City dated June 21, 2000. For purposes of this Note, "H.T.E." shall mean all
successors in interest and assignees, including, without limitation, pursuant
to a merger, consolidation, reorganization, recapitalization or other similar
restructuring event (collectively, a "Reorganization").
1. Interest Rate. Interest shall accrue on the outstanding
balance of such sum from and after the date hereof at the rate of NINE PERCENT
(9%) per annum, except upon default and then at a higher rate of interest, as
provided below. Interest shall be charged on the principal outstanding from
time to time for the actual number of days elapsed.
2. Payment of Principal and Interest.
H.T.E. shall pay the entire outstanding principal balance
under this Note, together with all accrued and unpaid interest thereon (the
"Indebtedness"). The Indebtedness shall be due and payable in two equal
installments of $625,000 on June 1, 2001 and June 1, 2002 (at which time the
entire remaining principal and accrued and unpaid interest shall be due and
payable). For purposes of this Note, the entire term, from the date hereof
until maturity, hereinafter referred to as the "Loan Term".
3. Events of Default.
Any of the following shall constitute an "Event of Default"
under this Note, and shall give rise to the remedies provided in Section 4
herein:
(a) Any failure by H.T.E. to pay when due all or any
portion of principal or interest hereunder;
(b) If H.T.E. (i) admits in writing its inability to pay
generally its debts as they mature, or (ii) makes a general assignment for the
benefit of creditors, or (iii) is adjudicated a bankrupt or insolvent, or (iv)
files a voluntary petition in bankruptcy, or (v) takes advantage, as against
its creditors, of any bankruptcy law or statute of the United States of America
or any state or subdivision thereof now or hereafter in effect, or (vi) has a
petition or proceeding filed against it under any provision of any bankruptcy
or insolvency law or statute of the United States of America or any state or
subdivision thereof, which petition or proceeding is not dismissed within
thirty (30) days after the date of the commencement thereof, (vii) has a
receiver, liquidator, trustee, custodian, conservator, sequestrator or other
such person appointed by any court to take charge of its affairs or assets or
business and such appointment is not vacated or discharged within thirty (30)
days thereafter, or (viii) takes any action in furtherance of any of the
foregoing;
(c) Any, liquidation, dissolution or winding up of H.T.E.
or its business or any sale of substantially all of its capital stock or
assets; or
(d) Any default by H.T.E. under the terms of the Security
Agreement (as defined below).
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4. Remedies on Default.
If any Event of Default shall occur and be continuing, the
City shall, in addition to any and all other available rights and remedies,
have the right, at the City's option, to: (a) declare the entire unpaid
principal balance of this Note, together with all interest accrued thereon at
the rate hereinbefore specified to the date of said Event of Default, and all
other sums due by H.T.E. hereunder, to be immediately due and payable; and (b)
pursue any and all available remedies for the collection of such principal and
interest to enforce its rights as described herein; and in such case the City
may also recover all costs of suit and other expenses in connection therewith,
including reasonable attorney's fees for collection and the right to equitable
relief (including, but not limited to, injunctions) to enforce the City's
rights as set forth herein (as described herein).
5. Prepayment of Principal. The principal indebtedness
represented by this Note may be prepaid in whole or in part, without the prior
written consent of the City.
6. Security for Note. This Note and the payments due hereunder
are secured, inter alia, by, and the City is entitled to the benefits of, the
Pledge and Security Agreement of even date herewith, between H.T.E. and the
City (the "Security Agreement").
7. Certain Waivers. Except as otherwise expressly provided in
this Note, the H.T.E. hereby waives diligence, presentment for payment and
protest. All amounts payable under this Note shall be payable without relief
under any applicable valuation and appraisement laws. The H.T.E. hereby
expressly agrees that this Note, or any payment hereunder, may be extended,
modified or subordinated (by forbearance or otherwise) from time to time,
without in any way affecting the liability of the H.T.E..
8. Waivers and Amendments; Cumulative Remedies. Neither any
provision of this Note nor any performance hereunder may be amended or waived
orally, but only by an agreement in writing and signed by the party against
whom enforcement of any waiver, change, modification or discharge is sought. No
right or remedy conferred upon the parties under this Note is intended to be
exclusive of any other right or remedy contained herein or in any instrument or
document delivered in connection herewith, and every such right or remedy shall
be cumulative and shall be in addition to every other such right or remedy
contained herein and/or now or hereafter existing at law or in equity or
otherwise.
9. Jurisdiction and Governing Law. This Note shall be deemed to
be a contract made under the laws of the State of Florida and shall be governed
by, and construed in accordance with, the laws of the State of Florida, without
giving effect to the principles of conflicts of law. Any suit file to enforce
the terms of this Note may only be brought in the Circuit Court in and for
Seminole County, Florida.
10. Representations and Warranties. H.T.E. hereby makes the
following representations and warranties to the City:
(a) Organization, Good Standing and Power. H.T.E. is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Florida and has the requisite corporate power to own,
lease and operate its properties and assets and to conduct its business as it
is now being conducted.
(b) Authorization; Enforcement. H.T.E. has the requisite
corporate power and authority to enter into and perform this Note. The
execution, delivery and performance of this Note by H.T.E. and the consummation
by it of the transactions contemplated hereby and thereby have been duly and
validly authorized by all necessary corporate action, and no further consent or
authorization of H.T.E. or its Board of Directors or shareholders is required.
This Note has been duly executed and delivered by H.T.E.. This Note
constitutes, or shall constitute when executed and delivered, a valid and
binding obligation of H.T.E. enforceable against H.T.E. in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, conservatorship,
receivership or similar laws relating to, or affecting generally the
enforcement of, creditor's rights and remedies or by other equitable principles
of general application.
11. Consent to Jurisdiction and Service of Process. H.T.E.
consents to the jurisdiction of the state and federal courts in the State of
Florida. H.T.E. waives personal service of any summons, complaint or other
process in
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connection with any such action or proceeding and stipulates and agrees that
service thereof may be made, as the City may elect, by certified mail directed
to H.T.E. at the location then registered in the City's records for H.T.E. so
served (and that any process so served shall be effective five (5) days after
mailing), or, in the alternative, in any other form or manner permitted by law.
12. Attorneys' Fees. In the event the City or any holder hereof
shall refer this Note to an attorney for collection, H.T.E. agrees to pay all
the costs and expenses incurred in attempting or effecting collection hereunder
or enforcement of the terms of this Note, including attorney's fees; provided,
however, that in the event of any other breach of any provision of this Note
(except for an action involving the collection of sums rightly due the City or
any holder hereof), the prevailing party shall be entitled to attorneys' fees,
including, but not limited to, contingency fees, whether or not suit is
instituted.
13. Additional Documents. From time to time H.T.E. will execute
and deliver to the City such additional instruments as the City may reasonably
request to effectuate the purposes of this Note.
14. Notices. All notices given under this Note shall be by (i)
personal service, (ii) first class United States mail, postage prepaid, (iii)
overnight delivery service, charges prepaid, or (iv) telecopy or other means of
electronic transmission, if confirmed promptly by any of the methods specified
in clauses (i), (ii), and (iii) of this sentence, to the parties at the
following addresses:
If to H.T.E.: H.T.E., Inc.
1000 Business Center Drive
Lake Mary, Florida 32746
Attention: Chief Financial Officer
with a copy to: L.A. Gornto, Jr., Esquire
149-F South Ridgewood Avenue
Daytona Beach, Florida 32114
If to the City: The City of Tacoma, Washington
1201 Pacific Avenue, Suite 2200
Tacoma, Washington 98401-1157
Attention: Richard Creatura, Esq.
or to such other addresses as may be specified by like notice and shall be
deemed to have been duly given or made when delivered by personal service, two
days after deposited in the mails or one day after given to an overnight
delivery service.
15. Waiver. Neither any failure or delay by the City in
exercising any right, power or privilege hereunder or under the Note shall
operate as a waiver thereof; nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. No notice to or demand on H.T.E. in any case shall
entitle H.T.E. to any other or further notice or demand in similar or other
circumstances or shall constitute a waiver of the City's right to any other or
further action in any circumstances without notice or demand.
16. Entire Agreement. This Note constitutes the full
understanding between the parties hereto with respect to the subject matter
hereof, and no statements, written or oral, made prior to or at the signing
hereof shall vary or modify the terms hereof. No amendment, modification or
release from any provision hereof shall be effective unless in writing and
executed by the party to be charged therewith and shall be effective only in
the specific instance and for the specific purpose for which given.
17. Severability. If any provision of this Note is prohibited or
unenforceable in any jurisdiction, it shall be ineffective in such jurisdiction
only to the extent of such prohibition or unenforceability, and such
prohibition or unenforceability shall not invalidate the balance of such
provision to the extent it is not prohibited or
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unenforceable nor the remaining provisions hereof, nor render unenforceable
such provision in any other jurisdiction.
18. Assignment. This Note shall inure to the benefit of, and
shall be binding upon, H.T.E. and the City and their respective successors and
permitted assigns. H.T.E. may not assign any of its rights or obligations
hereunder without the prior written consent of the City.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Note on and as of the date first set forth above.
H.T.E., INC.
By: /s/ Bernard B. Markey
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Name: Bernard B. Markey
Title: Chairman
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