EXHIBIT 10.13
DATED: MARCH 31,1999 $2,000,000.00
PROMISSORY NOTE
NUMBER: 0002
FOR VALUE RECEIVED, THE UNDERSIGNED (the "Payor") PROMISES TO PAY to Emanuel
Weintraub Inter Vivos Trust (the "Lender"), or order, the principal sum of
$2,000,000.00 (the "Principal Sum") to be paid in equal monthly installments on
the last day of each month commencing on April 30, 1999, until fully paid with
the last payment due on March 31, 2002.
The Principal sum and all interest and expenses, if any, owing under this Note
pursuant to that certain Share Purchase Agreement ("Share Purchase Agreement")
are secured by that certain Security Agreement ("Weintraub Security Agreement"),
each of such foregoing agreements being of even date herewith and each by and
between the Payor and the Lender (such Weintraub Security Agreement, Share
Purchase Agreement, and all documents executed in connection with the foregoing,
as such may be amended, modified, supplemented, or restated from time to time,
the "Acquisition Documents'), which Acquisition Documents provide, among other
things, for a security interest, subordinated to a first position security
interest granted by the Payor in the Share Purchase Agreement, in all of the
Payor's right, title, and interest in all properties and assets, including,
without limitation, those purchased from the Lender of and pertaining to the
business or providing funeral, burial and cremation services and the provision
and sale of pre-need cremation services carried on by the Payor, its affiliates
and/or subsidiaries.
If the Payor fails to make any payments due under this Note when such payments
are due, save and except for any non-payments due to any set-off rights the
Payor may have against the Lender, or in the event of any breach of the terms or
agreements of the Weintraub Security Agreement, without the Payor satisfying any
cure provisions thereunder, the entire unpaid principal balance of this Note,
together with all accrued and unpaid interest, shall become immediately due and
payable prior to the specified due date of this Note, all of the foregoing
without prejudice to any other rights, recourses or remedies which may have
accrued in favor of the Lender as a result of the default of the Payor,
including, without limitation, the Lender's rights pursuant to the Acquisition
Documents. Provided, however, that in the event any installment is not paid as
of the due date and there is no other default by the Payor under the Acquisition
Documents, the Payor shall have the right to cure such default by payment to the
Lender of the amount of the installment as to which a payment default has
occurred together with any accrued interest from the date of default until the
date of cure, provided, further, that such right of cure shall lapse
automatically on the date that is 30 days after the date the Lender delivers to
the Payor written notice of such default. In the event that such cure is not
timely made, the prior acceleration by the Lender, if any, shall remain
effective and the entire accelerated amount due, with interest from the date of
default computed as the accelerated amount, shall be immediately due and paying,
and the Lender shall be entitled to pursue all of its other rights and remedies.
If an action is instituted to collect this Note, the Payor promises to pay all
costs and expenses (including reasonable attorneys' fees) incurred in connection
with such action. A waiver of any term of this Note, the Acquisition Documents
or of any of the obligations secured thereby must be made in writing and signed
by the Lender and any such waiver shall be limited to its express terms. No
delay by the Lender in acting with respect to the terms of this Note or the
Acquisition Documents or any of the obligations secured thereby shall constitute
a waiver of any breach, default or failure of a condition under this Note, the
Acquisition Documents or the obligations secured thereby.
The Payor waives presentment, demand, notice of dishonor, notice of default or
delinquency, notice of acceleration, notice of protest and non-payment, notice
of costs, expenses or losses and interest thereon, notice of interest on
interest and diligence in taking any action to collect any sums owing under this
Note or in proceeding against any of the rights or interests in or to properties
securing payment of this Note. The foregoing waiver of defenses shall not be
construed to limit or impair the Payor's right to cure as provided above.
The undersigned, if not in default under this Note, or under the terms of any
security for the repayment of the monies evidenced hereby, may prepay all or any
amount owing hereunder, upon payment to the Lender of interest at the rate
aforesaid to the date of such prepayment, on the amount so prepaid, without
notice or bonus.
All dollar amounts referred to in this Agreement are stated in United States of
America currency, unless otherwise expressly stated.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE
HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE
CORPORATION THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT OR RULE 144 UNDER THE
SECURITIES ACT, IF APPLICABLE, OR (D) IN A TRANSACTION THAT IS OTHERWISE EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS,
PROVIDED THAT PRIOR TO SUCH SALE THE CORPORATION SHALL HAVE RECEIVED AN OPINION
OF COUNSEL OF RECOGNIZED STANDING, IN FORM AND SUBSTANCE SATISFACTORY TO IT, AS
TO THE AVAILABILITY OF AN EXEMPTION.
LARI ACQUISITION COMPANY, INC.
Per: /s/ Suzanne L. Wood
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Authorized Signatory
