THIS IS A BALLOON NOTE AND THE FINAL PRINCIPAL PAYMENT OR THE BALANCE DUE UPON
MATURITY IS $_____________________, TOGETHER WITH ACCRUED INTEREST, LATE
CHARGES, AND COLLECTION COSTS, IF ANY, AND ALL ADVANCEMENTS MADE BY THE PAYEE
UNDER THE TERMS OF THIS NOTE.
PROMISSORY NOTE
______________________________ Dollars
Ft. Lauderdale, Florida
________, 200___
FOR VALUE RECEIVED, the undersigned (the "Maker") promises to pay to the
order of Xxxx Xxxxxxx (the "Payees' Representative"), but solely as escrow agent
for, on behalf of and for further distribution to, each of the parties listed on
Schedule "A" attached hereto and made a part hereof (each, a "Payee" and
collectively, the "Payees"), the aggregate principal sum of ___________________
Dollars and ____/100 ($__________________), together with interest thereon from
the date hereof, at the rate of four percent (4%) per annum, through the first
to occur of (i) the Maturity Date (as defined below) or (ii) the prepayment in
full of the entire principal amount hereof pursuant to Section 4 of this Note.
Interest on this Note shall be computed on the basis of a 360-day year for the
actual number of days elapsed.
This Promissory Note (this "Note") is issued subject to the following
additional terms and conditions:
1. Type of Payment. Payment of both principal and interest shall be
made in currency of the United States of America which at the time of payment
shall be legal tender for the payment of public and private debts.
2. Manner of Payment. All payments required by this Note shall be
made by delivery of the required payment to the Payees' Representative at
___________________________ or to such account or other address as the Payees'
Representative shall designate in a written notice to the Maker at least 10 days
prior to the payment date.
3. Maturity Date. This Note shall mature and the principal sum
hereof, together with all accrued and unpaid interest thereon, shall become due
and payable upon [INSERT DATE THAT IS FIRST TO OCCUR OF THE ONE YEAR ANNIVERSARY
OF THIS NOTE OR DECEMBER 31, 2005].
4. Optional Prepayment. Anything herein to the contrary notwithstanding,
the Maker may prepay this Note, in whole or in part, at any time and from time
to time, without premium or penalty. Any partial prepayment shall be applied
first against any accrued interest hereunder and then against the principal
balance remaining due hereunder.
5. Default Rate of Interest. In the event that this Note is accelerated
following the occurrence of an Event of Default (as defined in Section 6 below),
and whether or not a judgment has been entered, interest shall accrue on all
sums outstanding hereunder at fifteen percent (15%) per annum until all sums due
hereunder, including without limitation, any costs of collection provided in
Section 6, principal and accrued interest and/or amounts under any judgment
rendered pursuant to this Note are paid.
6. Events of Default. The occurrence of any of the following events shall
constitute an "Event of Default" under this Note:
(a) Failure to pay when due any payment of principal or interest
under this Note within five (5) days of the date such payment is due (calculated
by including the due date); or
(b) A bankruptcy occurs with respect to the Maker while this Note is
still outstanding. "Bankruptcy" shall mean (i) the adjudication of the Maker as
bankrupt or insolvent, (ii) the institution by or against the Maker of a
petition for arrangement or of any other type of insolvency proceeding under the
United States Bankruptcy Code, as amended (but, with respect to an involuntary
proceeding, only if such proceeding is not discharged within 60 days), (iii) the
making by the Maker of a general assignment for the benefit of creditors, (iv)
the appointment of a liquidator, administrator, receiver or trustee in
bankruptcy of the Maker or the Maker's assets or (v) the taking, making or
institution of any like or similar act or proceeding involving the Maker.
Upon the occurrence of an Event of Default, all amounts due under
this Note, including the unpaid balance of principal and interest hereof, shall
become immediately due and payable at the option of the Payees' Representative
(but automatically with respect to an Event of Default described in clause (b)
of the definition thereof), without presentment, demand, notice protest or other
formalities of any kind, all of which are expressly waived by Maker, and Payee
may exercise any of Payee's rights and remedies granted herein, under applicable
law or which Payee may otherwise have against Maker.
The Maker agrees to pay all costs of collection, including attorney's
reasonable fees and expenses, in case the principal of this Note or any payment
of any interest thereon is not paid at the due date thereof, whether suit be
brought or not.
7. Payees' Representative. The Payees' Representative shall collect,
receive and disburse all amounts paid to it under this Note not as a "Payee"
(except to the extent that the Payees' Representative is also one of the Payees
listed on Schedule "A"), but as escrow agent on behalf of the Payees. The Maker
shall have no obligation or responsibility to see to the application of such
funds by the Payees' Representative, nor any liability for any failure by the
Payees' Representative to disburse all or any portion of such funds to the
Payees as and when required. The Maker shall be entitled to rely upon any
notice, instrument or other writing delivered to it by the Payees'
Representative pursuant to this Note, without being required to determine the
authenticity of, or the correctness of any fact stated in, that document. The
Maker may act in reliance upon any instrument or signature of the Payees'
Representative believed by it to be genuine. It is expressly understood and
agreed that no Payee shall be entitled to make any demand, issue any
instructions, give any notice, waive any term of, or exercise any rights under
this Note and that the all such rights, powers and privileges (to the extent
available under this Note) are exclusively vested in the Payees' Representative.
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8. Miscellaneous.
(A) This Note shall be binding upon the Maker and its
successors and assigns.
(B) If any provision hereof shall be held invalid or
unenforceable by any court of competent jurisdiction or as a result of future
legislative action, such holding or action shall be strictly construed and shall
not affect the validity or effect of any other provision hereof.
(C) The validity, interpretation and effect of this Note shall
be exclusively governed by, and construed in accordance with, the laws of the
State of Florida, excluding the "conflict of laws" rules thereof.
(D) This Note may not be amended or modified, nor shall any
waiver of any provision hereof be effective, except by an instrument in writing
executed by the Maker and the Payees' Representative.
(E) By acceptance of this Note, each Payee irrevocably and
unconditionally (a) agrees that any suit, action or other legal proceeding
arising out of or relating to this Agreement shall be brought in the circuit
court located in Broward County, Florida or the court of the United States,
Southern District of Florida; (b) consents to the jurisdiction of each such
court located in any such suit, action or proceeding; (c) waives any objection
which it may have to the laying of venue of any such suit, action or proceeding
in any of such courts; and (d) agrees that service of any court paper may be
affected on such party by mail, as provided in this Agreement or in such other
manner as may be provided under applicable laws or court rules in said state.
THIS IS A BALLOON NOTE AND THE FINAL PRINCIPAL PAYMENT OR THE BALANCE DUE UPON
MATURITY IS $_________________, TOGETHER WITH ACCRUED INTEREST, LATE CHARGES,
AND COLLECTION COSTS, IF ANY, AND ALL ADVANCEMENTS MADE BY THE PAYEE UNDER THE
TERMS OF THIS NOTE.
the xxxxx.xxx, inc.
By ___________________________
Name:
Title:
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SCHEDULE "A"
PAYEES ALLOCABLE PORTION OF PRINCIPAL
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