EXHIBIT 4.1
PROMISSORY NOTE
U.S.$200,000.00 April 1, 2002
FOR VALUE RECEIVED, the undersigned, XXXXXXXX.XXX INC., a
corporation organized under the laws of the state of Nevada (the "Borrower"),
HEREBY UNCONDITIONALLY PROMISES TO PAY to the order of Xxxxxx X. Xxxxxxxxx
("Lender"), the aggregate principal amount of U.S.$200,000 (the "Principal
Amount"), as provided in this PROMISSORY NOTE (this "Note"), on the following
terms and conditions:
1. Maturity Date. The Principal Amount of this Note shall be due and
payable in full on July 1, 2002.
2. Interest. Interest shall be payable on the unpaid Principal Amount at
the rate of two and 69/100 percent (2.69%) per annum, calculated from
the date hereof. Accrued interest shall be payable in a single lump sum
cash payment on the Maturity Date. If any portion of the principal
amount or interest shall not be paid when due hereunder, interest shall
be payable in cash on demand on all such overdue amounts at a rate of
twelve percent (12%) per annum commencing from the date such amounts
shall have been due. All computations of interest shall be made by the
Lender on the basis of a 365-day year and actual days elapsed. In no
event shall the interest rate payable on this Note exceed the maximum
rate permitted to be charged under applicable law.
3. Acceleration. Notwithstanding Section 1 above, the entire unpaid
Principal Amount of this Note shall be immediately due and payable upon
the occurrence of any of the following:
a. Borrower shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with
respect to itself or its debts under any Bankruptcy Law (as
defined below) or seeking the appointment of a Custodian (as
defined below) of any substantial part of his property, or
shall consent to any such relief or to the appointment of or
taking possession by any Custodian in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall take any
corporate action to authorize any of the foregoing; or
b. a court of competent jurisdiction shall enter a decree or
order providing for relief in respect of Borrower in an
involuntary case under any Bankruptcy Law or appointing a
Custodian of Borrower or for any substantial part of its
property, or ordering the winding-up or liquidation of its
affairs and such decree or order shall remain unstayed and in
effect for a period of 30 consecutive days. As used herein,
"Bankruptcy Law" means Title 11, United States Code or any
similar federal, state or foreign law for the relief of
debtors, and "Custodian" means any receiver, trustee,
assignee, liquidator, sequestrator, custodian or similar
official under any Bankruptcy Law.
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4. Payment. Payments under this Note shall be made in immediately
available federal funds in United States dollars. All such payments
under this Note shall be made prior to 12:00 P.M. (New York City time)
by wire transfer to a bank account designated by Lender prior to such
transfer. The Borrower may prepay in whole or in part the outstanding
amount of the Principal Amount at any time and without premium or
penalty.
5. Liability. The liability of the Borrower under this Note shall be
irrevocable, absolute and unconditional irrespective of, and without
setoff, counterclaim, recoupment, deduction or reduction for or on
account of (and for purposes of making payment hereunder, the Borrower
hereby irrevocably waives any defenses it may now or hereafter have in
any way relating to), all and any circumstances, including, without
limitation, the following circumstances: (i) any transfer, assignment
or other disposition by Xxxxxx in whole or in part of its rights,
remedies, title and interest under this Note; (ii) any lack or failure
of presentment, demand, protest, notice of dishonor, notice of protest
and other notices of any kind in connection with this Note; and (iii)
any claim by Xxxxxxxx against Lender in contract or tort, in law or
equity.
6. Waiver. Failure of Lender to insist upon strict performance of the
terms, conditions and provisions of this Note shall not be deemed a
waiver of future compliance therewith or a waiver of such terms,
conditions or provisions. No waiver of any terms, conditions or
provisions hereof shall be deemed to have been made unless expressed in
writing and signed by Xxxxxx. The terms of this Note shall not be
amended, supplemented or modified in any manner without the prior
written consent of Lender and the Borrower.
7. Choice of Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to
contracts made and to be performed wholly within that state without
regard to any conflicts of law provisions that might indicate the
applicability of the laws of any other state. The Borrower hereby
submits to the jurisdiction of the New York state courts and the
Federal courts of the United States located in the State of New York in
any action arising out of or under this Note. THE BORROWER IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS NOTE OR THE ACTIONS OF
LENDER OR THE BORROWER IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT
HEREOF.
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IN WITNESS WHEREOF, this Note has been duly executed and delivered by a
duly authorized officer of the Borrower on the date first above written.
XXXXXXXX.XXX INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: President & CEO
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