exv10w2



 



EXHIBIT 10.2


RENEWAL PROMISSORY NOTE


$1,900,000.00


Nassau, New Providence Island, Bahamas

as of January 17, 2003


     FOR VALUE RECEIVED, the undersigned, AESP, INC., a Florida corporation,
(the “Maker”), promises to pay to the order of COMMERCEBANK, N.A. and assigns
(collectively “Lender”), the principal sum of the lesser of (i) One Million
Nine Hundred Thousand and 00/100 DOLLARS ($1,900,000) on the terms set forth
herein, or (ii) the amount actually advanced to the Maker and outstanding in
accordance with the terms of the Line of Credit described in that certain loan
agreement (the “Loan Agreement”), dated September 23, 1999 between Maker and
the Lender, as it may be amended, supplemented, modified or restated from time
to time.


     All defined terms used herein shall have the meanings assigned in the Loan
Agreement except to the extent such terms are defined or limited herein.


     This renewal promissory note (this “Note”) renews the outstanding
principal amount of that certain renewal promissory note (the “Third Renewal
Note”) in the original principal amount of $4,000,000, from Borrower to Lender,
dated September 21, 2001, and is not intended to be a novation of the
obligations evidenced by the Original Note.


     Principal and interest shall be payable, as follows:



		
	 	     From the date of this Note until April 23, 2003, interest shall be
due on the outstanding principal amount of this Note at a floating
rate equal to the Wall Street Journal Prime Rate (hereinafter
defined) plus two percent (2%) (the “Initial Note Rate”).
Beginning on April 24, 2003 and continuing until July 22, 2003
(the “Maturity Date”), interest shall be due on the outstanding
principal amount of this Note at a floating rate equal to the Wall
Street Journal Prime Rate (hereinafter defined) plus three percent
(3%) (the “Final Note Rate”). The Initial Note Rate and the Final
Note Rate shall hereinafter be collectively referred to as the
“Note Rate”. The Note Rate shall be a floating rate and shall
initially be set as of the date of this promissory note and shall
be adjusted daily based on changes to the Wall Street Journal
Prime Rate as of such date. All changes in the Note Rate shall be
effective as of the date of change in the Wall Street Journal
Prime Rate. Interest shall be payable on the twentieth (20th) day
of each consecutive calendar month prior to the Maturity Date
(hereinafter defined), commencing February 20, 2003. All remaining
unpaid principal and interest due thereon and all other amounts
owing under this Note and the Loan Documents (hereinafter
defined), shall be due and payable in full in no event later than
the Maturity Date. “Wall Street Journal Prime Rate” shall mean
the prime rate as reported in the money rate column of the “Wall
Street Journal” on the date of determination. Interest shall be
computed on the basis of a 360 day year for the actual number of
days in the applicable period. Notwithstanding the foregoing, in
the event the principal



 






 





		
	 	amount due under this Note is permanently reduced to $1,400,000,
or less, as of March 31, 2003, and Borrower is not in default
under any of the “Loan Documents”, as that term is defined in the
Fourth Amendment to the Loan Agreement, dated January 17, 2003,
the Note Rate shall be equal to the Wall Street Journal Prime Rate
plus one-half of one percent (.5%).



     Prepayments shall be made and shall be applied as described in the Loan
Agreement. Maker may prepay the principal amount outstanding hereunder without
penalty.


     All installments of principal and/or interest are payable at the offices
of Commercebank, 220 Alhambra Circle, Coral Gables, FL 33134, or at such other
place as Lender hereof may, from time to time, designate in writing, in lawful
money of the United States of America, which shall be in legal tender for
public and private debts at the time of payment.


     Maker may prepay this Note at any time without penalty.


     If default is made in the payment of any part of the principal of or
interest due under the terms of this Note or upon an Event of Default under the
Loan Agreement (and such default is not cured after notice thereof, if required
under the applicable loan document, and the expiration of any applicable grace
period), then this Note shall be in default and the entire principal sum and
accrued interest shall become due and payable at once without notice and demand
at the option of Lender. While in default, the principal of this Note shall
bear interest at a rate equal to the maximum rate permitted under applicable
law (the “Default Rate”).


     In addition to the above, Lender may collect a late charge not to exceed
an amount equal to five percent (5%) of any installment which is not paid
within twenty (20) days of the due date thereof to cover the extra expense
involved in handling delinquent payments, provided that collection of said late
charge shall not be deemed a waiver by Lender of any of its other rights under
this Note and the Loan Agreement, the Security Agreement or any other
instrument given to secure this indebtedness.


     It is agreed that each maker and endorser, jointly and severally, shall
pay all reasonable costs of collection, including reasonable attorneys’ fees,
on failure to pay any principal or interest when due on this Note. Such costs
and attorneys’ fees shall include, but not be limited to, reasonable attorneys’
fees and paralegal fees incurred by Lender hereof in any and all judicial
proceedings, including appellate proceedings, arising out of enforcement and/or
collateral securing this indebtedness, whether such proceedings arise before or
after entry of final judgment.


     In case any provision (or any part of any provision) contained in this
Note shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or enforceability shall not affect any
other provision (or remaining part of the affected provision) of this Note, but
this Note shall be construed as if such invalid, illegal or unenforceable
provision (or part thereof) had never been contained herein, but only to the
extent it is invalid, illegal or unenforceable.


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     Notwithstanding any provision of this Note and/or any instrument securing
payment of this Note to the contrary, it is the intent of the undersigned Maker
and Lender that Lender hereof shall never be entitled to receive, collect or
apply as interest on principal of the indebtedness any amount in excess of the
maximum rate of interest permitted to be charged by applicable law; and in the
event Lender ever receives, collects, or applies as interest any such excess,
such amount which should be excessive interest shall be deemed a partial
prepayment of principal and treated hereunder as such; and, if the principal of
the indebtedness secured hereby is paid in full, any remaining excess funds
shall forthwith be paid to Maker. In determining whether or not the interest
paid or payable under any specific contingency exceeds the highest lawful rate,
Maker and Lender shall, to the maximum extent permitted under applicable law
(a) characterize any non-principal payment as an expense, fee or premium rather
than as interest (b) exclude voluntary prepayments and the effects thereof, and
(c) amortize, prorate, allocate and spread, in equal parts, the total amount of
interest throughout the entire contemplated term of the indebtedness so that
the interest rate is uniform throughout the entire term of the indebtedness;
provided that if the indebtedness is paid and performed in full prior to the
end of the full contemplated term thereof, and if the interest received for the
actual period of existence thereof exceeds the maximum lawful rate, Lender
shall refund to Maker the amount of such excess or credit the amount of such
excess against the principal portion of the indebtedness, and in such event,
Lender shall not be subject to any penalties provided by any laws for
contracting for, charging, or receiving interest in excess of the maximum
lawful rate. In no contingency or event whatsoever shall the amount paid or
agreed to be paid to Lender for the use, forbearance or detention of the
indebtedness collateralized hereby exceed the maximum amount permissible under
applicable law. If, from any circumstances whatsoever, fulfillment of any
provision hereof or any provision of any instrument securing the primary
obligation at the time performance of such provision shall be due shall involve
transcending the limit of validity prescribed by applicable law, then, ipso
facto, the obligation to be fulfilled shall be reduced to the limit of such
validity. This provision shall control every other provision of this Note.


     Maker, and each surety, endorser, guarantor and other party liable for the
payment of any sums of money payable on this Note, severally waive the right of
exemption under the Constitution and Laws of Florida, presentment and demand
for payment, protest and notice of protest and nonpayment, notice of dishonor,
notice of demand or intent to demand, notice of maturity and all requirements
necessary to hold each of them liable as maker, surety, endorser, guarantor and
any other party liable for the payment of sums of money hereunder, and agree
that their liability on this Note shall not be affected by any renewal or
extension in the time of payment thereof or by any release or change in any
security for the payment of this Note, regardless of the number of such
renewals, extensions, releases or changes.


     Maker and Lender mutually understand, covenant and agree that the
provisions of this Note (i) shall be binding upon Maker and its successors and
assigns (except as herein otherwise set forth) and shall inure to the benefit
of Lender and its assigns including any subsequent holder of this Note and (ii)
shall be construed, governed and enforced in all respects by the laws of the
State of Florida, including the Usury Laws of said state.


     Time shall be of the essence of each and every covenant and promise
contained in this Note and every other instrument securing the repayment of
this Note.


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     This Note is secured by that certain collateral described in that certain
Security Agreement (the “Security Agreement”) dated September 23, 1999 between
Maker and Lender and is to be construed according to the Laws of Florida. Any
default occurring under the Loan Agreement (which default is not cured after
notice thereof, if required under the applicable Loan Document, and the
expiration of any applicable grace period) shall constitute a default under
this Note, and Lender, at its option, may declare this Note due and payable in
full and may exercise its remedies under the Security Agreement.


     Maker hereby submits to the jurisdiction of the courts of the State of
Florida in the event any litigation arising from or related to this Note is
commenced. Maker agrees that the Lender may institute any cause of action
against Maker involving this Note in the courts of Miami-Dade County, Florida,
and hereby waives any venue privilege or right to be sued in any other forum.


     THE MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION, PROCEEDINGS, OR
COUNTERCLAIMS ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS OR ANY OF THE
LOAN DOCUMENTS. FURTHER, THE MAKER HEREBY CERTIFIES THAT NO REPRESENTATIVES OR
AGENTS OF THE LENDER NOR THE MAKER’S OR THE LENDER’S COUNSEL HAS REPRESENTED,
EXPRESSED OR OTHERWISE, THAT THE LENDER WOULD NOT IN THE EVENT OF SUCH
LITIGATION SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. MAKER
ACKNOWLEDGES THAT THE LENDER HAS BEEN INDUCED TO ENTER INTO THIS TRANSACTION
BY, INTER ALIA, THE PROVISIONS OF THIS SECTION. THE MAKERS AGREE NOT TO SEEK
TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY
OTHER ACTION BY WHICH A JURY TRIAL CANNOT BE WAIVED.


     IN WITNESS WHEREOF, the undersigned have executed and delivered this Note
the day and year first hereinabove provided.



	 	 	 	 	 	 	 
	 	 	 	 	 	 	AESP, INC.
	 
	 
	 
	 
	 	 	 	 	 	 	By: /s/ Slav Stein
	 	 	 	 	 	 	

	 	 	 	 	 	 	Name: Slav Stein

Title: President
	COMMONWEALTH OF THE BAHAMAS	 	
)

)
	 	 
ss:	 	 
	ISLAND OF NEW PROVIDENCE	 	
)	 	 	 	 



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     The foregoing Promissory Note was sworn to before me this      day of
January, 2003, in the Commonwealth of the Bahamas, Island of New Providence.



	 	 	 
	 	 	
Notary Public, Commonwealth of the Bahamas

My commission expires:



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