EXHIBIT 10.35
2/6/2002 THIS NOTE RELACES AND SUPERCEDES THE ORIGINAL NOTE OF 2/6/2002
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FOR VALUE RECEIVED, $15,000, the undersigned, Xxxx Xxxxxx ("Maker") hereby
promises to pay to the order of XxxxxxXxxxxxx.xxx Corp ("Payee"), at Payee's
principal office at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx X000, Xxxxxxxxx, Colorado or
at such other place or places as Maker may from time to time designate in
writing, the principal sum of $15,000.
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Together with interest on the principal balance upon maturity outstanding as
hereinafter set forth.
A. Interest Rate. From the date of this Promissory Note (the "NOTE") until the
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occurrence of an event set forth in Section C below, the principal balance from
time to time unpaid shall bear interest, and Maker promises to pay such
interest, at a rate of Eight percent per annum (8.0%) upon maturity.
After the earliest of (i) the Maturity Date (as hereafter defined), whether by
acceleration or otherwise, (ii) the occurrence of any default in the payment of
any installment of interest on the date due and payable, or (iii) the occurrence
of any other Event of Default (as hereafter defined), hereunder, the total
unpaid indebtedness hereunder shall bear interest at a rate of Eight percent
(8%) plus the rate of interest otherwise chargeable hereunder (the "DEFAULT
RATE").
Interest shall be computed on the basis of a 360 day year and charged for the
actual number of days elapsed. Interest accrued from the date of this Note
shall be due and payable on the Maturity Date (as hereafter defined).
B. Maturity Date; Payment. The Maker shall repay the principal amount of this
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Note, and any interest accrued thereon then remaining unpaid, on the Maturity
Date (as hereafter defined). Notwithstanding the foregoing, the entire
principal balance of this Note then outstanding, plus any accrued and unpaid
interest thereon shall be due and payable on the earliest of (a) 2/6/2007 (Five
Years hence) or (b) such earlier date on which said amount shall become due and
payable on account of acceleration by Xxxxx (the "MATURITY DATE"). Maker agrees
that, on the Maturity Date, Maker will pay to Payee the entire principal balance
of this Note then outstanding, together with all accrued and unpaid interest
hereunder.
C. Default; Remedies. Any one of the following occurrences shall constitute an
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"EVENT OF DEFAULT" under this Note: (i) failure by the Maker to make any payment
of principal or interest when the same becomes due and payable, said failure
continuing for thirty (30) days or more; or (ii) if Maker shall fail to pay its
debts, make an assignment for the benefit of its creditors, or shall commit an
act of bankruptcy, or shall admit in writing its inability to pay its debts as
they become due, or shall seek a composition, readjustment, arrangement,
liquidation, dissolution or insolvency proceeding under any present or future
statute or law, or shall file a petition under any chapter of federal Bankruptcy
Code or any similar law, state or federal, now or hereafter existing, or shall
become "insolvent" as that term is generally defined under the Federal
Bankruptcy Code, or shall in any involuntary bankruptcy case commenced against
it file an answer admitting insolvency or inability to pay its debts as they
become due, or shall fail to obtain a dismissal of such case within sixty (60)
days after its commencement or convert the case from one chapter of the Federal
Bankruptcy Code to another chapter, or be the subject of an order for relief in
such bankruptcy case, or to be adjudged a bankruptcy or insolvent, or shall have
a custodian, trustee or receiver appointed for, or have any court take
jurisdiction of its property, or any part thereof, in any proceeding for the
purpose of reorganization, arrangement, dissolution or liquidation, and such
custodian, trustee, liquidator or receiver shall not be discharged, or such
jurisdiction shall not be relinquished, vacated or stayed within sixty (60) days
of the appointment.
Upon occurrence of an Event of Default hereunder, the entire outstanding
principal balance and any unpaid interest then accrued under this Note, shall at
the option of the Payee hereof and without demand or notice of any kind to the
undersigned or any other person (including, but not limited to, any guarantor
now or hereafter existing), immediately become and be due and payable in full.
In such event, Payee shall have and may exercise any and all rights and remedies
available at law or in equity.
D. Assignment. No assignment of this Note in whole or in part, or of any
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interest hereunder, shall be effective or binding upon the Maker until such
transfer or assignment shall have been duly recorded on the books of the Maker
to be maintained for such purpose, and any transfer or assignment hereof shall
require surrender hereof to the Maker at its principal office accompanied by an
appropriate instrument of transfer or assignment in form satisfactory to the
Maker, provided that the Maker may not and cannot be compelled or required to
act or effectuate any such assignment or transfer except after compliance by the
Payee or holder hereof with securities laws or regulations deemed applicable by
the Maker. Neither may this Note or any interest hereunder be pledged or
hypothecated except upon compliance with the foregoing.
E. Waiver Amendment. Maker, for itself and for its successors,
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transferees and assigns hereby irrevocably (i) waives diligence, presentment and
demand for payment, protest, notice, notice of protest and nonpayment, dishonor
and notice of dishonor and all other demands or notices of any and every kind
whatsoever, and (ii) agrees that this Note and any or all payments coming due
hereunder may be extended from time to time in the sole discretion of Payee
hereof without in any way affecting or diminishing Maker's liability hereunder.
No extension of the time for any payment due hereunder made by agreement with
any person now or hereafter liable for payment of this Note shall operate to
release, discharge, modify, change or affect the original liability under this
Note, either in whole or in part. No delay in the exercise of any right or
remedy hereunder by Xxxxx shall be deemed to be a waiver of such right or
remedy, nor shall the exercise of any right or remedy hereunder by Xxxxx be
deemed an election of remedies or a waiver of any other right or remedy. Without
limiting the generality of the foregoing, the failure of the Payee promptly
after the occurrence of any default hereunder to exercise its right to declare
the indebtedness remaining unmatured hereunder to be immediately due and payable
shall not constitute a waiver of such right while such default continues nor a
waiver of such right in connection with any future default.
F. Governing Law and Jurisdiction. This Note has been executed and
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delivered at Englewood, Colorado and shall be governed by and construed in
accordance with the internal laws of the State of Texas.
IN WITNESS WHEREOF, XxxxxxXxxxxxx.xxx Corp. has caused this Note to be
executed and delivered on its behalf by its President, as of the date and year
first above written.
By: ___________________________
PAYEE
XxxxxxXxxxxxx.xxx Corp.
______________________
MAKER
Xxxx Xxxxxx
