STATE OF
LOUISIANA §
PARISH OF
ORLEANS §
PROMISSORY NOTE
(DRAW FACILITY)
FOR VALUE RECEIVED , UNITED ESYSTEMS, INC. , a Nevada
corporation (“ ESystems ”), NETCOM
DATA SOUTHERN CORP ., a Georgia corporation (“
Southern ”), NETCOM DATA CORP ., a
Georgia corporation (“ Netcom ”) and
UNITED CHECK SERVICES, L.L.C ., a Louisiana limited
liability company (“ Check Services ” and
together with ESystems, Southern and Netcom, jointly, severally and
in solido , “ Debtor ”)
unconditionally promises to pay to the order of THERMO CREDIT,
LLC a Colorado limited liability company
(together with its successors and assigns, “
Lender ”), without setoff, at its offices at
639 Loyola Avenue, Suite 2565, New Orleans (Parish of Orleans),
Louisiana 70113, or at such other place as may be designated by
Lender, the principal amount of TWO MILLION ONE HUNDRED
TWENTY-EIGHT THOUSAND FIVE HUNDRED AND NO/100 DOLLARS
($2,128,500.00) , or so much thereof as may be advanced and
outstanding hereunder from time to time in immediately available
funds, together with interest computed daily on the outstanding
principal balance hereunder, at an annual interest rate (the
“ Rate ”), and in accordance with the
payment schedule, indicated below. This PROMISSORY
NOTE (this “ Note ”) is executed
pursuant to and evidences the Loans funded and to be funded by
Lender under that certain LOAN, PLEDGE AND SECURITY
AGREEMENT between Debtor and Lender dated as of even date
herewith (as the same may be amended, supplemented, renewed or
extended from time to time, the “ Loan
Agreement ”) to which reference is made for a
statement of the collateral, rights and obligations of Debtor and
Lender in relation thereto; but neither this reference to the Loan
Agreement nor any provision thereof shall affect or impair the
absolute and unconditional obligation of Debtor to pay unpaid
principal of and interest on this Note when
due. Capitalized terms not otherwise defined herein
shall have the same meanings as in the Loan Agreement.
1.
Rate . The Rate shall be the
LESSER of (a) the MAXIMUM RATE , or (b)
GREATER of: (i) the PRIME RATE plus
EIGHT PERCENT (8.00%) , or (ii) FIFTEEN
PERCENT (15.00%) . The term “ Prime
Rate ” means a variable rate of interest per annum
equal to the prime rate as published from time to time in the
“ Bonds, Rates & Yields ” table of The
Wall Street Journal . If such Prime Rate, as so
quoted, is split between two or more different interest rates, then
the prime rate shall be the highest of such interest
rates. If the Prime Rate is no longer published in the
“ Bonds, Rates & Yields ” table of The
Wall Street Journal , then the Prime Rate shall be (i) the rate
of interest per annum established from time to time by lender and
designated as its base or prime rate, which may not necessarily be
the lowest rate charged by Lender and is set by Lender in its sole
discretion, or (ii) if Lender does not publish or announce a base
or prime rate, or does so infrequently or sporadically, then the
Prime Rate shall be determined by reference to another base rate,
prime rate, or similar lending rate index, generally accepted on a
national basis, as selected by Lender in its sole and absolute
discretion. Notwithstanding any provision of this Note
or any other agreement or commitment between Debtor and Lender,
whether written or oral, express or implied, Lender shall never be
entitled to charge, receive, or collect, nor shall amounts received
hereunder be credited so that Lender shall be paid, as interest a
sum greater than interest at the Maximum Rate. It is the
intention of the parties that this Note, and all instruments
securing the payment of this Note or executed or delivered in
connection therewith, shall comply with applicable
law. If Lender ever contracts for, charges, receives or
collects anything of value which is deemed to be interest under
applicable law, and if the occurrence of any circumstance or
contingency, whether acceleration of maturity of this Note,
prepayment of this Note, delay in advancing proceeds of this Note,
or any other event, should cause such interest to exceed the
maximum lawful amount, any amount which exceeds interest at the
Maximum Rate shall be applied to the reduction of the unpaid
principal balance of this Note or any other indebtedness owed to
Lender by Debtor, and if this Note and such other indebtedness are
paid in full, any remaining excess shall be paid to
Debtor. In determining whether the interest exceeds
interest at the Maximum Rate, the total amount of interest shall be
spread, prorated and amortized throughout the entire term of this
Note until its payment in full. The term " Maximum
Rate " as used in this Note means the maximum nonusurious
rate of interest per annum permitted by whichever of applicable
United States federal law or Louisiana law permits the higher
interest rate, including to the extent permitted by applicable law,
any amendments thereof hereafter or any new law hereafter coming
into effect to the extent a higher Maximum Rate is permitted
thereby. If at any time the Rate shall exceed the
Maximum Rate, the Rate shall be automatically limited to the
Maximum Rate until the total amount of
THERMO CREDIT, LLC - UNITED
ESYSTEMS, INC.
interest
accrued hereunder equals the amount of interest which would have
accrued if there had been no limitation to the Maximum
Rate.
2.
Accrual Method . Interest on the
Indebtedness evidenced by this Note shall be computed on the basis
of a THREE HUNDRED SIXTY (360) day year and shall accrue on
the actual number of days elapsed for any whole or partial month in
which interest is being calculated. In computing the
number of days during which interest accrues, the day on which
funds are initially advanced shall be included regardless of the
time of day such advance is made, and the day on which funds are
repaid shall be included unless repayment is credited prior to the
close of business on the Business Day received as provided
herein.
3.
Rate Change Date . The Rate will change
each time and as of the date that the Prime Rate
changes.
4.
Payment Schedule . Except as expressly
provided herein to the contrary, all payments on this Note shall be
applied in the following order of priority: (a) the payment or
reimbursement of any expenses, costs or obligations (other than the
outstanding principal balance hereof and interest hereon) for which
either Debtor shall be obligated or Lender shall be entitled
pursuant to the provisions of this Note or the other Loan
Documents, (b) the payment of accrued but unpaid interest
hereon, and (c) the payment of all or any portion of the
principal balance hereof then outstanding hereunder, in the direct
order of maturity. If an Event of Default exists under
any of the other Loan Documents, then Lender may, at the sole
option of Lender, apply any such payments, at any time and from
time to time, to any of the items specified in clauses (a),
(b) or (c) above without regard to the order of priority otherwise
specified herein and any application to the outstanding principal
balance hereof may be made in either direct or inverse order of
maturity. If any payment of principal or interest on
this Note shall become due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day and such
extension of time shall be such case be included in computing
interest in connection with such payment. The
outstanding principal balance of this Note, plus accrued and
unpaid interest thereon shall be due and payable on the
earlier of: (i) the acceleration of the Indebtedness
pursuant to the terms of the Loan Documents; (ii) MARCH 17,
2009 ; or (iii) such other date as may be established by a
written instrument between Debtor and Lender, from time to time
(the “ Maturity Date
”). Accrued and unpaid interest on the outstanding
principal balance of this Note shall be due and payable monthly
commencing on OCTOBER 31, 2008 and continuing on the
SAME day of each calendar month thereafter (or if no such
corresponding date, on the LAST date of such calendar month)
and on the Maturity Date. In the event that no Event of
Default or event which with notice and/or the passage of time would
be an Event of Default shall have occurred and be continuing as of
MARCH 17, 2009 , Debtor shall have the option to
extend the Maturity Date (the “ Extension
Option ”) to the earlier of: (i) the
acceleration of the Indebtedness pursuant to the terms of the Loan
Documents; (ii) SEPTEMBER 17, 2009 ; or (iii) such other
date as may be established by a written instrument between Debtor
and Lender, upon (1) written notice to Lender, (2) Lender’s
approval of the requested extension (not to be unreasonably
withhel
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