EXHIBIT 10.29
Exhibit D
REPLACEMENT PROMISSORY NOTE
$1,500,000 April 1, 2000
FOR VALUE RECEIVED, VisionQuest Worldwide Holdings Corporation,
a Delaware corporation, having its principal business office at
7674 West Lake Mead Blvd., Las Vegas, NV 89128 ("Maker"),
promises to pay the order of Gerald Holland ("Disbursement Agent"),
4860 N.E. 12th Avenue, Fort Lauderdale, Florida 33334,
the principal sum of One Million Five Hundred Thousand Dollars
($1,500,000) lawful money of the United States of America,
or so much of that sum as may be advanced under this Note, together with
interest
1. Pursuant to the terms and provisions of a certain Loan Agreement ("Loan
Agreement") dated February 9, 1999 by and among the Maker, Jules Ross, Richard
A. Hahner, Case Holdings, Inc., Peter Casoria, Jr., Peter Casoria, Sr., Dennis
Lopez and Gerald M. Holland (the "Payees") and Robert Bray, Steve Gould, Gerald
Holland and Lee Kaplan, the beneficial owners of 4,978,264 shares of Common
Stock, $.10 par value, of Maker ("Shareholders"), the Payees have loaned to the
Maker the aggregate sum of $1,500,000, such loans are defined in the Loan
Agreement as the Initial Loan and the Additional Loan. Pursuant to the terms
and provisions of a certain Loan Agreement No. 2 dated as of April 26, 2000
among the Payees, Steve Gould, Lee Kaplan, Damaso W. Saavedra, Edward Cassatly,
Roslyn Sugarman, Charles J. Sugarman and the Company it was agreed that the
three notes of the Company evidencing the $1,500,000 loans to the Company would
be replaced by this Replacement Promissory Note and that all accrued interest
on the three notes would be exchanged by the Payees for shares of Common Stock
of the Company at the rate of one share for each $.10 of accrued interest. As
used herein, the term "Agreements" shall mean the Loan Agreement and Loan
Agreement No. 2. All of the agreements, conditions, covenants, provisions and
stipulations contained in the Agreements which are to be kept and performed by
Maker or the Shareholders with respect to the debt evidenced by this Note, and
this Note are hereby made a part of this Note to the same extent and with the
same force and effect as if they were fully set forth herein, and Maker
covenants and agrees to keep and perform them, or cause them to be kept and
performed, strictly in accordance with their terms.
2. (a) Subject to the terms of the Agreements, interest shall accrue, in
arrears, without setoff or deduction, from the date of the first advance
hereunder and continuing until the Maturity Date (as hereinafter defined), at
which time it shall be due and payable.
(b) The entire unpaid principal balance of this Note and all interest
accrued thereon but not previously paid and all other sums payable hereunder,
shall be due and payable in full on September 30, 2000 (the "Maturity Date").
3. The principal and interest shall be payable to the Disbursing Agent at his
address set forth above, or at such other place as Payees, from time to time,
may designate in writing. The Disbursing Agent shall, upon his receipt of
payment of interest or principal and collection of such amount distribute to
each of the Payees his or its proportionate share of the interest and principal
of each such payment on account of this Note as provided in the Loan Agreement.
4. Maker shall have the privilege of prepaying this Note in full but not in
part without penalty, at any time, provided not less than twenty (20) days
written notice of such election is given by Maker to the Payees.
5. It is further understood, however, that should any default be made in the
payment of any installment of principal and interest or any other payment due
under this Note on the date such payment is due, or in the performance of any
of the agreements, conditions, covenants, provisions or stipulations contained
in this Note, in the Loan Agreement or in any of the Loan Documents, as herein
defined, or should the employment by the Company of Steve Gould be terminated
for any reason whatsoever, then the Disbursement Agent, acting pursuant to
instructions of the Payees, at their option and without notice to Maker unless
expressly required elsewhere in this Note or the Loan Agreement, may declare
due and payable immediately the entire unpaid balance of principal and all
other sums due by Maker under this Note, with interest accrued on it at the
applicable rate specified above to the date of default and after that date at a
"default rate" which shall be highest rate of interest permitted under the laws
of Florida, notwithstanding anything to the contrary in this Note or in the
Loan Agreement; and payment may be enforced and recovered in whole or in part
at any time by one or more of the remedies provided to Payees in this Note. In
such a case Payees may also recover all costs of suit and other expenses in
connection with it, together with reasonable attorneys' fees for collection,
together with interest on any judgment obtained by Payees at the default rate
(defined above), including interest at the default rate from and after the date
of any execution, judicial or foreclosure sale until actual payment is made to
Payees of the full amount due Payees. This Note, the Agreements, the
Non-Recourse Pledge and Conditional Irrevocable Proxy Agreement and the Amended
Security Agreement, each of which are referred to herein, shall sometimes be
hereinafter referred to herein as the "Loan Documents."
6. (a) Payment of this Note is secured by a Shareholders' Non-Recourse Pledge
Agreement, as amended, among the Shareholders, the Maker and the Payees
pursuant to which shares of Common Stock, $.10 par value, of the Maker and
Class E Warrants have been pledged as security for payment of this Note by the
Maker.
(b) Payment of this Note is also secured by an Amended Security Agreement,
as further amended, among the Maker, VisionQuest Worldwide, Inc., a wholly
owned subsidiary of the Maker ("VisionQuest") and the Disbursement Agent, as
agent for the Payees, pursuant to which VisionQuest has granted to the Payees a
lien against products held by it for resale as security for payment of this
Note by the Maker.
7. Payees, or the Disbursing Agent on their behalf, shall not exercise any
right or remedy provided for herein because of any default of Maker unless (i)
in the event of a monetary default, Maker shall have failed to pay the
outstanding sums within a period of five (5) business days after the date of
the notice of default has been given by the Disbursing Agent or the Payees; or
(ii) in the event of a non-monetary default, Maker shall have failed within a
period of thirty (30) days after the date Payees or the Disbursing Agent, as
the case may be, has given Maker written notice of such default to cure the
non-monetary default; provided, however, Payee shall not be required to give
any such notice or to allow any part of the grace period if Maker shall have
filed a petition in bankruptcy or reorganization or a bill in equity or
otherwise initiated proceedings for the appointment of a receiver of its
assets, or if Maker shall have made an assignment for the benefit of creditors,
or if receiver or trustee is appointed for Maker and such appointment or such
receivership is not terminated within thirty (30) days.
8. Payees' failure to exercise their option to accelerate the indebtedness
evidenced by this Note shall not constitute a waiver of the right to exercise
that option at any other time so long as that event of default remains
outstanding and uncured, or to exercise it upon the occurrence of another
default.
9. The remedies of Payees as provided in this Note shall be cumulative and
concurrent; may be pursued singly, successively, or together at the sole
discretion of Payees, may be exercised as often as occasion for their exercise
shall occur; and in no event shall the failure to exercise any such right or
remedy be construed as a waiver or release of it.
10. Maker waives presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this note, and all
other notices in connection with the delivery, acceptance, performance,
default, or enforcement of the payment of this Note, and it agrees that its
liability shall be unconditional, without regard to the liability of any other
party, and shall not be affected in any manner by any indulgence, extension of
time, renewal, waiver, or modification granted or consented to by Payees.
11. If any provision of this Note is held to be invalid or unenforceable by a
Court of competent jurisdiction, the other provisions of this Note shall remain
in full force and effect and shall be construed liberally in favor of Payees in
order to effectuate the provisions of this Note. In no event shall the rate of
interest payable under this Note exceed the maximum rate of interest permitted
to be charged by the laws of Florida (including the choice of law rules) and
any interest paid in excess of the permitted rate shall be refunded to Maker.
That refund shall be made by application of the excessive amount of interest
paid against any sums outstanding and shall be applied in such order as Payee
may determine. If the excessive amount of interest paid exceeds the sums the
outstanding, the portion exceeding the sums outstanding shall be refunded in
cash by Payees. Any crediting or refund shall not cure or waive any default by
Maker under this Note. Maker agrees, however, that in determining whether or
not any interest payable under this Note exceeds the highest rate permitted by
law, any non-principal payment including, without limitation, prepayment fees
and late charges shall be deemed, to the extent permitted by law, to be an
expense, fee, premium or penalty rather than interest.
12. Payees shall not be deemed, by any act or omission or commission, to have
waived any of their rights or remedies under this Note unless the waiver is in
writing and signed by Payees, and then only to the extent specifically set
forth in the writing. A waiver on one event shall not be construed as
continuing or as a bar to or waiver of any right or remedy to a subsequent
event.
13. This instrument shall be governed by and construed according to the laws of
the State of Florida.
14. Whenever used, the singular number shall include the plural, the plural the
singular, the use of any gender shall be applicable to all genders, and the
words "Payees" and "Maker" shall be deemed to include the respective heirs,
personal representatives, successors and assigns of Payee and Maker. If Maker
consists of more than one person, corporation or other entity, the obligations
and liabilities of such persons, corporations or other entities under this Note
shall be joint and several, and the word "Maker" shall mean all or some or any
of them.
15. As provided in the Loan Agreement, the Disbursement Agent has been
authorized to act on behalf of the Payees with respect to this Note as and to
the extent instructed by the Payees.
16. All payments under this Note shall be made in such coin or currency of the
United States of America as at the time of payment shall be legal tender for
the payment of public or private debts.
17. Time is of the essence as to each provision of this Note which requires
Maker to take any action within a specified time period.
MAKER AND PAYEES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED
HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, VERBAL OR WRITTEN STATEMENTS OR ACTIONS OF EITHER
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR PAYEES TO MAKE THE
LOAN EVIDENCED BY THIS NOTE.
IN WITNESS WHEREOF, Maker, intending to be legally bound, has duly executed and
delivered this Note.
CONTINENTAL HERITAGE CORPORATION
By:
Steve Gould, President
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