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EXHIBIT 99(b)(19)
FORM OF UNSECURED PROMISSORY NOTE
$6,000,000.00 December 7, 2000
FOR VALUE RECEIVED, N'Tandem Trust, an unincorporated California business trust
having an address at 6160 South Syracuse Way, Greenwood Village, Colorado 80111
(hereinafter referred to as "Maker"), promises to pay to the order of CP Limited
Partnership, a Maryland partnership having an address at 6160 South Syracuse
Way, Greenwood Village, Colorado 80111 (hereinafter referred to as "Payee"), at
such address or at such place as the holder hereof may from time to time
designate in writing, the principal sum of $6,000,000.00 or so much as thereof
as may be advanced and outstanding with interest on the principal balance from
the date of each advance in lawful money of the United States of America, with
interest thereon to be computed from the date of this Note at the Applicable
Interest Rate (hereinafter defined), and to be paid as follows:
ARTICLE 1: PAYMENT TERMS
Accrued interest shall be due and payable on the 1/st/ day of January,
2001 and on the same day of each succeeding month, and the balance of said
principal sum and all accrued, unpaid interest thereon shall be due and payable
on the 31/st/ day of December, 2001 (the "Maturity Date"). Interest on the
principal sum of this Note shall be calculated on the basis of a three hundred
sixty (360) day year composed of twelve (12) months of thirty (30) days each
except that interest due and payable for a period less than a full month shall
be calculated by multiplying the actual number of days elapsed in such period by
a daily rate based on said 360 day year.
The term "Applicable Interest Rate" as used in this Note shall mean
one percent (1%) per annum over such base rate of interest ("Base Rate") as may
be adopted by Bank One, N.A. from time to time as its base or prime commercial
lending rate. Regardless of the term that may be used from time to time to
describe the Base Rate (such as "prime rate"), Base Rate does not necessarily
mean the lowest interest rate charged by Bank One, N.A. to other borrowers. The
Applicable Interest Rate shall be adjusted on the first day of each calendar
month during the term of this Note, with the adjusted rate being based upon the
Base Rate prevailing on the date of such adjustment.
ARTICLE 2: DEFAULT AND ACCELERATION
The whole of the principal sum of this Note, together with all
interest accrued and unpaid thereon and all other sums due under this Note (all
such sums hereinafter collectively referred to as the "Debt") shall without
notice become immediately due and payable at the option of Payee (i) if any
payment required in this Note is not paid within ten (10) days of the date when
due or (ii) if the entire Debt is not paid on the Maturity Date ((i) or (ii)
hereinafter referred to as an "Event of Default"). In the event that it should
become necessary to employ counsel to collect the Debt, Maker also agrees to pay
attorney's fees for the services of such counsel whether or not suit be brought.
ARTICLE 3: DEFAULT INTEREST
Maker does hereby agree that upon the occurrence of an Event of
Default, Payee shall be entitled to receive, and Maker shall pay interest on,
the entire unpaid principal sum at the rate of the lesser of (i) five percent
(5%) above the Applicable Interest Rate or (ii) the maximum
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rate of interest which Maker may by law pay (the "Default Rate"). The Default
Rate shall be computed from the occurrence of the Event of Default until such
Event of Default is cured or the date upon which the Debt is paid in full, as
the case may be. This charge shall be added to the Debt. This clause, however,
shall not be construed as an agreement or privilege to extend the date of the
payment of the Debt, nor as a waiver of any other right or remedy accruing to
Payee by reason of the occurrence of any Event of Default.
ARTICLE 4: PREPAYMENT
The principal balance of this Note may be prepaid in whole or in part
at anytime.
ARTICLE 5: SAVINGS CLAUSE
This Note is subject to the express condition that at no time shall
Maker be obligated or required to pay interest on the Debt or any portion
thereof at a rate which could subject Payee to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Maker is permitted by applicable law to contract or agree to pay. If by the
terms of this Note, Maker is at any time required or obligated to pay interest
on the Debt or any portion thereof at a rate in excess of such maximum rate, the
rate of interest under this Note shall be deemed to be immediately reduced to
such maximum rate and the interest payable shall be computed at such maximum
rate and all prior interest payments in excess of the maximum rate shall be
deemed to have been payments in reduction of principal and not on account of the
interest due hereunder.
ARTICLE 6: LATE CHARGE
If any sum payable under this Note is not paid within ten (10) days of
the date on which it is due, Maker shall pay to Payee an amount equal to the
lesser of five percent (5%) of such unpaid sum or the maximum amount permitted
by applicable law to defray the expenses incurred by Payee in handling and
processing such delinquent payment; provided, however, no such late charge will
be charged or collected if the amount of such late charge when added to all
interest constructed for, charged or received by Payee hereunder would exceed
the maximum amount of interest allowed by applicable law. This clause, however,
shall not be construed as an agreement or privilege to extend the date of the
payment of the Debt, nor as a waiver of any other right or remedy accruing to
Payee by reason of the occurrence of any Event of Default.
ARTICLE 7: NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Maker or Payee, but only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.
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ARTICLE 8: JOINT AND SEVERAL LIABILITY
If Maker consists of more than one person or party, the obligations
and liabilities of each such person or party shall be joint and several.
ARTICLE 9: WAIVERS
Maker and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest and notice of protest and non-payment. No
extension of time for payment of this Note or any installment hereof, and no
alteration, amendment or waiver of any provision of this Note made by agreement
between Payee and any other person or party shall release, modify, amend, waive,
extend, change, discharge, terminate or affect the liability of Maker, and any
other who may become liable for the payment of all or any part of the Debt.
ARTICLE 10: AUTHORITY
Maker (and the undersigned representative of Maker, if any) represents
that Maker has full power, authority and legal right to execute, deliver and
perform its obligations pursuant to this Note and that this Note constitutes a
valid and binding obligation of Maker.
ARTICLE 11: NOTICES
All notices or other written communications hereunder shall be deemed
to have been properly given (i) upon delivery, if delivered in person or by
facsimile transmission, (ii) one (1) Business Day (defined below) after having
been deposited for overnight delivery with any reputable overnight courier
service, or (iii) three (3) Business Days after having been deposited in any
post office or mail depository regularly maintained by the U.S. Postal Service
and sent by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to Maker: N'Tandem Trust
6160 South Syracuse Way
Greenwood Village, Colorado 80111
Attention: Steven G. Waite
If to Payee: CP Limited Partnership
6160 South Syracuse Way
Greenwood Village, Colorado 80111
Attention: Tamara Fischer
or addressed as such party may from time to time designate by written notice to
the other parties. Either party by notice to the other may designate additional
or different addresses for subsequent notices or communications. "Business Day"
shall mean a day upon which commercial banks are not authorized or required by
law to close in Colorado or New York.
ARTICLE 12: WAIVER OF TRIAL BY JURY
Maker hereby waives, to the fullest extent permitted by law, the right
to trial by jury in any action, proceeding or counterclaim, whether in contract,
tort or otherwise, relating
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directly or indirectly to the loan evidenced by this Note, the application for
the loan evidenced by this Note or any acts or omissions of Payee, its officers,
employees, directors or agents in connection therewith.
ARTICLE 13: GOVERNING LAW
This Note shall be deemed to be a contract entered into pursuant to
the laws of the State of Colorado and shall in all respects be governed,
construed, applied and enforced in accordance with the laws of the State of
Colorado and the applicable laws of the United States of America.
IN WITNESS WHEREOF, Maker has duly executed this Note as of the day
and year first above written.
N'TANDEM TRUST, an unincorporated
California business trust
By: /s/ Gary P. McDaniel
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Gary P. McDaniel
Trustee
