Exhibit 10.4
PROMISSORY NOTE
$_______________ Dallas, Texas March 24, 1997
FOR VALUE RECEIVED, the undersigned, U.S. Remodelers, Inc., a Delaware
corporation ("Maker"), hereby promises to pay to the order of
___________________ ("Payee"), at __________________________________, or such
other place as Payee may from time to time direct Maker in writing, the
principal sum of ______________________________________ ($______________),
together with interest thereon which shall accrue at the rate of ten percent
(10%) per annum, compounded annually. Cash payments of interest only shall be
made in equal semi-annual payments, each payment to be made on the first
Business Day (as hereinafter defined) of October and April beginning October 1,
1997 and continuing until March 31, 2002, upon which date the principal,
together with all accrued but unpaid interest hereon, shall mature and be due
and payable. All payments on this Note shall be due and payable in lawful money
of the United States of America.
1. Events of Default and Remedies. At the option of Payee (or the then
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current holder of this Note), the entire amount of the unpaid balance of this
Note together with all accrued and unpaid interest thereon, shall immediately
become due and payable upon the occurrence of one or more of the following
events of default ("Events of Default"):
(a) Failure of Maker to make any payment on this Note as and when the
same becomes due and payable in accordance with the terms hereof, and such
failure continues for a period of thirty (30) days after the receipt by
Maker of written notice from Xxxxx (or the then current holder of this
Note) of the occurrence of such failure; or
(b) Maker shall (i) voluntarily seek, consent to or acquiesce in the
benefit or benefits of any Debtor Relief Law (as hereinafter defined) or
(ii) become party to (or be made the subject of) any proceeding provided by
any Debtor Relief Law, other than as a creditor or claimant, that could
suspend or otherwise adversely affect the rights of Payee (or the then
current holder of this Note) granted hereunder (unless in the event such
proceeding is involuntary, the petition instituting the same is dismissed
within 90 days of the filing of same). As used herein, the term "Debtor
Relief Law" means the Bankruptcy Code of the United States of America and
all other applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization or similar debtor
relief laws from time to time in effect affecting the rights of creditors
generally.
In the event any one or more of the Events of Default specified above shall
have occurred, the holder of this Note may proceed to protect and enforce its
rights either by suit in equity or by action at law, or by other appropriate
proceedings, whether for the specific performance of any covenant or agreement
contained in this Note or in aid of the exercise of any power or right granted
by this Note, or to enforce any other legal or equitable right of the holder of
this Note.
2. Successors and Assigns. All of the covenants, stipulations, promises
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and agreements in this Note made by or on behalf of Maker shall bind its
successors and assigns, whether so expressed or not; provided, however, that
Maker may not, without the prior written consent of Xxxxx (or the then current
holder of this Note), assign any of its rights, powers, duties or obligations
under this Note.
3. Maximum Interest. Regardless of any provision contained herein, Maker
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shall never be required to pay and the holder hereof shall never be entitled to
receive, collect or apply as interest hereon, any amount in excess of the
highest lawful interest rate permitted under applicable law, and in the event
the holder hereof receives, collects or applies, as interest, any such excess,
such amounts which would be excessive interest shall be deemed a partial
prepayment of principal and treated hereunder as such for all purposes; and, if
the principal hereof is paid in full, any remaining excess shall be refunded to
Maker. In determining whether or not the interest paid or payable, under any
specific contingency, exceeds the highest lawful interest rate, Maker and the
holder hereof shall, to the maximum extent permitted under applicable law (a)
characterize any nonprincipal payment as an expense, fee or premium rather than
as interest, (b) exclude prepayments and the effects thereof, and (c) pro rate,
allocate and spread the total amount of interest throughout the entire
contemplated term hereof; provided that if the indebtedness evidenced hereby is
paid and performed in full prior to the end of the full contemplated term
hereof, and if the interest received for the actual period of existence thereof
exceeds the highest lawful interest rate, the holder shall either apply as
principal reduction or refund to Maker the amount of such excess, and in such
event, the holder shall not be subject to any penalties provided by any laws for
contracting for, charging or receiving interest in excess of the highest lawful
interest rate.
4. Transfers. This Note may not be transferred to any other person or
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entity without the prior written consent of Maker.
5. Interest Payments. Maker, at its option, may make any payments of
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interest due hereunder in either (i) cash, (ii) an additional promissory note or
notes (an "Interest Note") or (iii) any combination of cash and an Interest
Note. All Interest Notes made by Maker hereunder shall contain terms
substantially similar to this Note, and the principal amount of all Interest
Notes shall be due and payable in full, together with all accrued but unpaid
interest thereon, on March 31, 2002 unless earlier prepaid in accordance with
the terms of such Interest Note.
6. Prepayment. This Note (or any Interest Note issued hereunder) may be
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prepaid, in whole or from time to time in part, at the election of Maker, at any
time, at the Prepayment Price (expressed as a percentage of the principal amount
being prepaid) set forth below and, in each case, together with accrued interest
as of the date of prepayment. If prepaid during the twelve-month period
commencing on April 1 in each of the years indicated below, the Prepayment Price
shall be as follows:
Year Percentage
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1997 105%
1998 104%
1999 103%
2000 102%
2001 101%
7. Governing Law. This Note shall be governed by and construed in
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accordance with the substantive laws (but not the rules governing conflicts of
laws) of the State of Texas.
8. Notice. Any notice or demand given hereunder by the holder hereof (or
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by Maker) shall be deemed to have been given and received (a) when actually
received by Maker (or by the holder), if delivered in person or via telecopier,
or (b) if mailed, on the earlier of the date actually received or three Business
Days (as hereinafter defined) after a letter containing such notice, certified
or registered with postage prepaid, addressed to Maker (or the holder), is
deposited in the United States mail. The address of Maker is 00000 Xxxxxx Xxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, or such other address as Maker shall advise the
holder hereof by this same procedure. The address of the holder is the address
listed for payments to Payee in this Note, or such other address as the holder
shall advise the Maker by this same procedure. "Business Day" means every day
which is not a Saturday, Sunday or legal holiday.
9. Severability. In case any one or more of the provisions contained in
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this Note shall for any reason be held to be invalid, illegal and unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
EXECUTED as of the date set forth above.
MAKER:
U.S. REMODELERS, INC.
By:___________________________________
Xxxxxx Xxxxx
Chief Executive Officer
