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Exhibit 10.1
AMENDED AND RESTATED
PROMISSORY NOTE
$155,000 Effective as of May 30, 2000
For value received, the undersigned, Marc Douglas, ("Borrower"),
promises to pay to the order of Thrift Management, Inc. ("Lender"), the
principal sum of One Hundred, Fifty-Five Thousand ($155,000) or so much thereof
as may be advanced from time to time by the Lender in lawful money of the United
States of America, together with interest accruing thereon from the date hereof
at the rate hereinafter provided, calculated on the daily outstanding principal
balances from time to time based on a 360-day year.
This Amended and Restated Note shall bear interest at a rate of 8% per
annum. Payments of accrued interest on the principal balance outstanding from
time to time on this Amended and Restated Note shall commence on the 1st day of
July, 2000, and on the same day of each month thereafter. The outstanding
principal balance of this Amended and Restated Note, and all accrued but unpaid
interest thereon, shall be payable on or before December 31, 2001. Borrower
hereby agrees that if not paid as provided herein, the principal balance and any
accrued but unpaid interest thereon may be offset against and deducted from any
amounts due to Borrower from Lender.
This Amended and Restated Note is a restatement of and substitution of
that certain Promissory Note effective as of January 1, 1999, which Note was
executed by Borrower in favor of Lender.
So long as no default exists under this Amended and Restated Note,
Borrower shall have the right to prepay the unpaid principal balance evidenced
by this Amended and Restated Note in whole or in part without premium or penalty
but with accrued interest to the date of such prepayment on any amount prepaid,
and to borrow and reborrow such amounts up to the aggregate principal amount of
this Note.
All payments received hereunder shall be applied first to the payment
of any expenses or charges payable hereunder, then to interest due and payable,
with the balance applied to principal, or in such other order as Lender shall
determine at its option.
Notwithstanding any provision of this Amended and Restated Note to the
contrary, the parties intend that no provision of this Amended and Restated Note
be interpreted, construed, applied or enforced so as to permit or require the
payment or collection of interest in excess of the highest rate of interest
permitted to be paid or collected by the laws of the State of Florida (or
federal law, in the event federal law preempts Florida law or is otherwise
applicable), with respect to this transaction ("Maximum Permitted Rate"). If the
rate of interest charged by Lender under the provisions of this Amended and
Restated Note exceeds the Maximum Permitted Rate, then Lender and any holders of
this Amended and Restated Note, and Borrower and any endorsers and guarantors,
do hereby agree that the provisions of this Amended and Restated Note
automatically shall be deemed reformed NUNC PRO TUNC so as to require payment
only of interest at the Maximum Permitted Rate; and if interest payments in
excess of such Maximum Permitted Rate have been received, the amount of such
excess shall be deemed credited NUNC PRO TUNC in reduction of the
then-outstanding principal amount of this obligation,
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together with interest at such Maximum Permitted Rate. In connection with all
calculations to determine the Maximum Permitted Rate, the parties intend: first,
that all charges be excluded to the extent they are properly excludable under
the usury laws of the State of Florida, as they from time to time are determined
to apply to this obligation; and, second, that all charges that may be "spread"
in the manner provided by Section 687.03(3), Florida Statutes, or any similar
successor law.
Any payment not made when due shall constitute a default. If default be
made in the payment of any installment under this Amended and Restated Note, the
entire principal sum and accrued interest shall become due and payable without
notice at the option of the Lender. Failure to exercise this option shall not
constitute a waiver of the right to exercise the same at any other time. Upon
such default, the unpaid principal balance of this Amended and Restated Note,
and accrued and unpaid interest, if any, shall bear interest at 18% from the
date of default until the default is corrected. Lender's failure to exercise
this right with respect to any default shall not constitute a waiver of this
right as to any subsequent default. All parties liable for the payment of this
Amended and Restated Note agree to pay the Lender hereof reasonable attorneys'
fees for the services and expenses of counsel employed after default to collect
this Amended and Restated Note (including any appeals relating to such
enforcement proceedings), whether or not suit be brought.
The remedies of Lender as provided herein shall be cumulative and
concurrent, and may be pursued singly, successively or together, at the sole
discretion of Lender, and may be exercised as often as occasion therefor shall
arise. No act of omission or commission of Lender, including specifically any
failure to exercise any right, remedy or recourse, shall be effective as a
waiver thereof unless it is set forth in a written document executed by Lender
and then only to the extent specifically recited therein. A waiver or release
with reference to one event shall not be construed as continuing, as a bar to,
or as a waiver or release of, any subsequent right, remedy or recourse as to any
subsequent event.
Borrower and all sureties, endorsers and guarantors of this Amended and
Restated Note hereby: (a) waive demand, presentment for payment, notice of
nonpayment, protest, notice of protest and all other notice, filing of suit and
diligence in collecting this Amended and Restated Note, in enforcing any of its
rights; (b) agree to any addition or release of any party or person primarily or
secondarily liable hereon; (c) agree that Lender shall not be required first to
institute any suit, or to exhaust his, their or its remedies against Borrower or
any other person or party to become liable hereunder in order to enforce payment
of this Amended and Restated Note; (d) consent to any extension, rearrangement,
renewal or postponement of time of payment of this Amended and Restated Note and
to any other indulgence with respect hereto without notice, consent or
consideration to any of the foregoing; (e) agree to the right to set off against
any deposits, funds or monies owing; and (f) agree that, notwithstanding the
occurrence of any of the foregoing (except the express written release of Lender
of any such person), they shall be and remain jointly and severally, directly
and primarily, liable for all sums due under this Amended and Restated Note.
BORROWER KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVES ANY RIGHT
BORROWER HAS TO A TRIAL BY JURY IN CONNECTION WITH ANY MATTER DIRECTLY OR
INDIRECTLY RELATING TO THIS AMENDED AND RESTATED NOTE. BORROWER ACKNOWLEDGES
THAT NEITHER LENDER NOR
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ANY PERSON ACTING ON BEHALF OF LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
As used herein, the words "Borrower" and "Lender" shall be deemed to
include Borrower and Lender as defined herein and their respective heirs,
personal representatives, successors and assigns.
/s/ Marc Douglas
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Marc Douglas
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