MONEYONMOBILE, INC. SECURED PROMISSORY NOTE
Exhibit 99.3
SECURED PROMISSORY NOTE
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Issuance
Date: [ ], 2019
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Principal
Amount: U.S. $[ ]
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FOR VALUE RECEIVED, MoneyOnMobile, Inc.,
a Texas corporation (the “Borrower”), hereby unconditionally
promises to pay to the order of [_________________] or its assigns
(the “Noteholder,” and together with the
Borrower, the “Parties”), the principal amount of
[ ] and 00/100 Dollars ($[ ])(the “Loan”), together with all accrued
interest thereon, as provided in this Secured Promissory Note. This
Secured Promissory Note (including all Promissory Notes issued in
exchange, transfer or replacement hereof, this “Note”) is one of an issue of up to
$1,200,000 aggregate principal amount of Notes issued pursuant to
or contemplated by the Securities Purchase Agreement (as defined
below) (collectively, the “Notes” and such other Promissory
Notes, the “Other
Notes”).
1. Definitions. Capitalized terms
used herein shall have the meanings set forth in this Section 1.
“Affiliate” means as to any Person,
any other Person that, directly or indirectly through one or more
intermediaries, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition,
“control” of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause
the direction of the management and policies of such Person,
whether by contract or otherwise.
“Anti-Corruption Laws” means all
laws, rules, and regulations of any jurisdiction applicable to the
Borrower from time to time concerning or relating to bribery or
corruption, including the United States Foreign Corrupt Practices
Act of 1977 and the rules and regulations promulgated
thereunder.
“Applicable Rate” means the rate
equal to 12.0%.
“Borrower” has the meaning set
forth in the introductory paragraph.
“Business Day” means any day other
than Saturday, Sunday or other day on which commercial banks in The
City of New York are authorized or required by law to remain
closed.
“Debt” of the Borrower, means all
(a) indebtedness for borrowed money; (b) obligations for the
deferred purchase price of property or services, except trade
payables arising in the ordinary course of business; (c)
obligations evidenced by notes, bonds, debentures, or other similar
instruments; (d) obligations as lessee under capital leases; (e)
obligations in respect of any interest rate swaps, currency
exchange agreements, commodity swaps, caps, collar agreements, or
similar arrangements entered into by the Borrower providing for
protection against fluctuations in interest rates, currency
exchange rates, or commodity prices, or the exchange of nominal
interest obligations, either generally or under specific
contingencies; (f) obligations under acceptance facilities and
letters of credit; (g) guaranties, endorsements (other than for
collection or deposit in the ordinary course of business), and
other contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any Person, or otherwise to
assure a creditor against loss, in each case, in respect of
indebtedness set out in clauses (a) through (f) of a Person other
than the Borrower; and (h) indebtedness set out in clauses (a)
through (g) of any Person other than Borrower secured by any lien
on any asset of the Borrower, whether or not such indebtedness has
been assumed by the Borrower.
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“Default” means any of the events
specified in Section 8 which constitute an Event
of Default or which, upon the giving of notice, the lapse of time,
or both, pursuant to Section 8, would, unless cured or
waived, become an Event of Default.
“Default Rate” means, at any time,
the Applicable Rate plus 2.0%.
“Equity Interests” means any and
all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all
equivalent ownership (or profit) interests in a Person (other than
a corporation), securities convertible into or exchangeable for
shares of capital stock of (or other ownership or profit interests
in) such Person, and any and all warrants, rights or options to
purchase any of the foregoing, whether voting or nonvoting, and
whether or not such shares, warrants, options, rights or other
interests are authorized or otherwise existing on any date of
determination.
“Event of Default” has the meaning
set forth in Section 8.
“Fundamental Transaction” means
that (i) the Borrower or any of its Subsidiaries shall, directly or
indirectly, in one or more related transactions, (1) consolidate or
merge with or into (whether or not the Borrower or any of its
Subsidiaries is the surviving corporation) any other Person, or (2)
sell, lease, license, assign, transfer, convey or otherwise dispose
of all or substantially all of its respective properties or assets
to any other Person, or (3) allow any other Person to make a
purchase, tender or exchange offer that is accepted by the holders
of more than 50% of the outstanding shares of Voting Stock of the
Borrower (not including any shares of Voting Stock of the Borrower
held by the Person or Persons making or party to, or associated or
affiliated with the Persons making or party to, such purchase,
tender or exchange offer), or (4) consummate a stock or share
purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, spin-off or
scheme of arrangement) with any other Person whereby such other
Person acquires more than 50% of the outstanding shares of Voting
Stock of the Borrower (not including any shares of Voting Stock of
the Borrower held by the other Person or other Persons making or
party to, or associated or affiliated with the other Persons making
or party to, such stock or share purchase agreement or other
business combination), or (5) reorganize, recapitalize or
reclassify the Common Stock (which shall not include a reverse
stock split), or (ii) any “person” or
“group” (as these terms are used for purposes of
Sections 13(d) and 14(d) of the 1934 Act and the rules and
regulations promulgated thereunder) is or shall become the
“beneficial owner” (as defined in Rule 13d-3 under the
1934 Act), directly or indirectly, of 50% of the aggregate ordinary
voting power represented by issued and outstanding Voting Stock of
the Borrower, other than pursuant to the Transaction
Documents.
“GAAP” means generally accepted
accounting principles in the United States of America as in effect
from time to time.
“Governmental Authority” means the
government of any nation or any political subdivision thereof,
whether at the national, state, territorial, provincial, municipal,
or any other level, and any agency, authority, instrumentality,
regulatory body, court, central bank, or other entity exercising
executive, legislative, judicial, taxing, regulatory, or
administrative powers or functions of, or pertaining to, government
(including any supranational bodies, such as the European Union or
the European Central Bank).
“Issuance Date” means the
“Issuance Date” first written above.
“Law” as to any Person, means the
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law (including common
law), statute, ordinance, treaty, rule, regulation, order, decree,
judgment, writ, injunction, settlement agreement, requirement or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its
property is subject.
“Lien” means any mortgage, pledge,
hypothecation, encumbrance, lien (statutory or other), charge, or
other security interest.
“Loan” has the meaning set forth in
the introductory paragraph.
“Material Adverse Effect” means a
material adverse effect on (a) the business, properties, assets,
operations, results of operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries, taken
as a whole; (b) the validity or enforceability of the Note or any
other Transaction Document; (c) the perfection or priority of any
Lien purported to be created under the Security Agreement; (d) the
rights or remedies of the Noteholder hereunder or under any other
Transaction Document to which the Noteholder is party; or (e) the
Borrower’s ability to perform any of its material obligations
hereunder or under any other Transaction Document.
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“Maturity Date” means the earlier
of (a) March 18, 2021 and (b) the date on which all amounts under
this Note shall become due and payable pursuant to Section 9.
“Note” has the meaning set forth in
the introductory paragraph.
“Noteholder” has the meaning set
forth in the introductory paragraph.
“Order” as to any Person, means any
order, decree, judgment, writ, injunction, settlement agreement,
requirement, or determination of an arbitrator or a court or other
Governmental Authority, in each case, applicable to or binding on
such Person or any of its properties or to which such Person or any
of its properties is subject.
“Parties” has the meaning set forth
in the introductory paragraph.
“PATRIOT Act” means the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L.
107-56, signed into law October 26, 2001).
“Permitted Indebtedness” means Debt
(a) existing or arising under this Note or the Other Notes and any
refinancing thereof; and (b) future Debt that is subordinated in
payment and security to the Notes.
“Person” means any individual,
corporation, limited liability company, trust, joint venture,
association, company, limited or general partnership,
unincorporated organization, Governmental Authority, or other
entity.
“Required Noteholders” means the
holders of Notes representing at least a majority of the aggregate
principal amount of the Notes then outstanding.
“Securities Purchase Agreement”
means that certain Securities Purchase Agreement dated as of March
15, 2019 by and among the Borrower and the investors listed on the
Schedule of Buyers attached thereto, pursuant to which the Borrower
issued the Notes and Warrants.
“Security Agreement” means the
Security Agreement, dated as of the date hereof, by and between the
Borrower and each holder of Notes, as the same may be amended,
restated, supplemented, or otherwise modified from time to time in
accordance with its terms.
“Subsidiaries” means any Person in
which the Borrower, directly or indirectly, (x) owns any of the
outstanding capital stock or holds any equity or similar interest
of such Person or (y) controls or operates all or any part of the
business, operations or administration of such Person, and each of
the foregoing, is individually referred to herein as a
“Subsidiary.”
For purposes of this Note, Subsidiaries does not include My Mobile
Payments Limited.
“Transaction Documents” means the
Securities Purchase Agreement, the Notes, the Warrants, and the
Security Agreement, as the same may be amended, restated,
supplemented, or otherwise modified from time to time in accordance
with their terms.
“Voting Stock” of a Person means
capital stock of such Person of the class or classes pursuant to
which the holders thereof have the general voting power to elect,
or the general power to appoint, at least a majority of the board
of directors, managers, trustees or other similar governing body of
such Person (irrespective of whether or not at the time capital
stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
“Warrants” has the meaning ascribed
to such term in the Securities Purchase Agreement, and shall
include all warrants issued in exchange therefor or replacement
thereof.
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2. Payment Dates; Optional
Prepayments.
(a) Payment Dates. The aggregate
unpaid principal amount of the Loan, all accrued and unpaid
interest, and all other amounts payable under this Note shall be
due and payable on the Maturity Date, unless otherwise provided in
Section 9.
(b) Optional Prepayments. The
Borrower may prepay the Loan in whole or in part at any time or
from time to time without penalty or premium by paying the
principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. No prepaid amount may be
reborrowed. Any prepayment under this Note must be made
pro rata with all other
Notes based on their respective outstanding principal
amounts.
3. Security Agreement. The
Borrower’s performance of its obligations hereunder is
secured by a first priority security interest in the collateral
specified in the Security Agreement.
4. Interest.
(a) Interest Rate. Except as
otherwise provided herein, the outstanding principal amount of the
Loan made hereunder shall bear interest at the Applicable Rate from
the date the Loan was made until the Loan is paid in full, whether
at maturity, upon acceleration, by prepayment, or
otherwise.
(b) Interest Payment Date. Interest
shall be payable in arrears to the Noteholder on the Maturity
Date.
(c) Default Interest. If any amount
payable hereunder is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by
acceleration, or otherwise, such overdue amount shall bear interest
at the Default Rate from the date of such non-payment until such
amount is paid in full.
(d) Computation of Interest. All
computations of interest shall be made on the basis of 365 or 366
days, as the case may be and the actual number of days elapsed.
Interest shall accrue on the Loan on the day on which it is made,
and shall not accrue on the Loan for the day on which it is
paid.
(e) Interest Rate Limitation. If at
any time and for any reason whatsoever, the interest rate payable
on the Loan shall exceed the maximum rate of interest permitted to
be charged by the Noteholder to the Borrower under applicable Law,
such interest rate shall be reduced automatically to the maximum
rate of interest permitted to be charged under applicable
Law.
5. Payment Mechanics.
(a) Manner of Payments. All
payments of interest and principal shall be made in lawful money of
the United States of America no later than 12:00 PM on the date on
which such payment is due by wire transfer of immediately available
funds to the Noteholder’s account at a bank specified by the
Noteholder in writing to the Borrower from time to
time.
(b) Application of Payments. All
payments made hereunder shall be applied first to the payment of
any fees or charges outstanding hereunder, second to accrued
interest, and third to the payment of the principal amount
outstanding under the Note.
(c) Business Day Convention.
Whenever any payment to be made hereunder shall be due on a day
that is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension will be taken into
account in calculating the amount of interest payable under this
Note.
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(d) Evidence of Debt. The
Noteholder is authorized to record on the grid attached hereto as
Exhibit A the Loan
made to the Borrower and each payment or prepayment of the Loan.
The entries made by the Noteholder shall, to the extent permitted
by applicable Law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded;
provided, however, that the
failure of the Noteholder to record such payments or prepayments,
or any inaccuracy therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the
Loan in accordance with the terms of this Note.
(e) Rescission of Payments. If at
any time any payment made by the Borrower under this Note is
rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, or reorganization of the Borrower or
otherwise, the Borrower’s obligation to make such payment
shall be reinstated as though such payment had not been
made.
(f) Rank. All payments due under
this Note (a) shall rank pari
passu with all Other Notes and (b) shall be senior to all
other existing and future Debt of the Borrower.
6. Affirmative Covenants. Until
all amounts outstanding in this Note have been paid in full, the
Borrower shall:
(a) Maintenance of Existence. (a)
Preserve, renew, and maintain in full force and effect its
corporate or organizational existence and (b) take all reasonable
action to maintain all rights, privileges, and franchises necessary
or desirable in the normal conduct of its business, which business
is currently to recover all or part of the Company’s business
that is currently the subject of the dispute of the Company in
India, except, in each case, where the failure to do so would not
reasonably be expected to have a Material Adverse
Effect.
(b) Compliance. (a) Comply with (i)
all of the terms and provisions of its organizational documents;
and (ii) all Laws and Orders applicable to it and its business,
except where the failure to do so would not reasonably be expected
to have a Material Adverse Effect and (b) maintain in effect and
enforce policies and procedures reasonably designed to achieve
compliance by the Borrower and its directors, officers, employees
and agents with Anti-Corruption Laws.
(c) Notice of Events of Default. As
soon as possible and in any event within two 2 Business Days after
it becomes aware that a Default or an Event of Default has
occurred, notify the Noteholder in writing of the nature and extent
of such Default or Event of Default and the action, if any, it has
taken or proposes to take with respect to such Default or Event of
Default.
(d) Further Assurances. Promptly
execute and deliver such further instruments and do or cause to be
done such further acts as may be necessary or advisable to carry
out the intent and purposes of this Note and the other Transaction
Documents.
(e) Financial and Other
Information. Until the Notes have been paid in
full:
(i) To the extent
available, the Borrower shall provide the Noteholder with
consolidated annual financial statements of the Borrower for each
fiscal year and consolidated quarterly financial statements of the
Borrower for each fiscal quarter, as soon as they are
available.
(ii) As
soon as practicable, but in any event within 15 days after the end
of each calendar month, the Borrower shall provide the Noteholder
with a report, electronically or in writing, that includes (A)
internally prepared consolidated financial statements of income,
shareholders’ equity and cash flow of the Borrower for such
calendar month and a balance sheet of the Borrower as of the end of
such month (each prepared in accordance with GAAP, consistently
applied during the period covered by such statements and in a form
satisfactory to the Noteholder), setting forth in each case
comparisons to budgets prepared by the Borrower and (B) such other
financial or business information as the Noteholder may reasonably
request, all in a format that is mutually agreeable to the Borrower
and the Noteholder. The monthly statements shall be accompanied by
(i) a certificate from the Borrower’s principal financial
officer and principal executive officer, in a form reasonably
acceptable to the Noteholder, certifying that (A) the Borrower is
in compliance with each covenant set forth in the Transaction
Documents that applies to it, (B) no Event of Default has occurred
with respect to any of the Notes and (C) no event of default has
occurred with respect to any indebtedness in favor of banks, other
financial institutions or third party lenders, or if such is not
the case, specifying such non-compliance, Event of Default or other
event of default and the steps being taken to remedy same, and (ii)
a description of any pending or, to the Borrower’s knowledge,
threatened litigation or other legal action involving the Borrower
or any of its subsidiaries.
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(iii) Unless
otherwise notified by the Noteholder, during each calendar month
the Borrower shall hold at least two (2) review meetings (or
teleconferences) with the Noteholder at a mutually agreeable place
and time.
(iv) At
least 30 days prior to the commencement of each fiscal year the
Borrower shall provide the Noteholder with a comprehensive annual
budget, which shall include annual consolidated and consolidating
budgets prepared on a monthly basis for the Borrower for such
fiscal year (displaying anticipated statements of income,
shareholders’ equity, changes in financial position and
balance sheets and containing such internal narrative as is
appropriate).
(f) Other Borrower Information.
Until the Notes have been paid in full, the Borrower shall promptly
provide the Noteholder with any reports, management letters or
other information that are created or received concerning
significant aspects of its and/or any Subsidiary’s operations
and financial affairs to the extent not otherwise provided to the
Noteholder.
7. Negative Covenants. Until all
amounts outstanding under this Note have been paid in full, the
Borrower shall not, and shall cause each of its Subsidiaries to
not, without the prior written consent of the holders of at least a
majority of the aggregate principal amount of the
Notes:
(a) Indebtedness. Create, incur,
assume, permit to exist or otherwise become liable with respect to
any Debt, other than Permitted Indebtedness.
(b) Liens. Create, incur, assume or
permit to exist any Lien on any property or assets (including
Equity Interests of any of its Subsidiaries) now owned or hereafter
acquired by it or on any income or rights in respect of any
thereof, except for (a) Liens for taxes not yet due or which are
being contested in good faith by appropriate proceedings; (b)
non-consensual Liens arising by operation of law, arising in the
ordinary course of business, and for amounts which are not overdue
for a period of more than 30 days or that are being contested in
good faith by appropriate proceedings; and (c) Liens created
pursuant to the Security Agreement.
(c) Line of Business. Enter into
any business, directly or indirectly, except for those businesses
in which the Borrower or its Subsidiaries is engaged on the date of
this Note or that are reasonably related thereto.
(d) Fundamental Transactions. Enter
into or be party to a Fundamental Transaction.
(e) Restricted Payments. Declare or
pay any dividend on, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition
of, any Equity Interests of the Borrower or any of its
Subsidiaries, whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of the
Borrower or any of its Subsidiaries.
(f) Prepayments of Debt and Amendments of
Debt Instruments.
(i) Make or offer to
make any optional or voluntary payment or prepayment on or
redemption, defeasance or purchase of any amounts (whether
principal or interest) payable under any Debt which is
contractually subordinated in right of payment to the obligations
of the Parties pursuant to the Transaction Documents;
and
(ii) Amend,
modify, waive or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to any of the terms
of any Debt that is contractually subordinated to the obligations
of the Parties pursuant to the Transaction Documents, other than
any amendment, modification, waiver or other change which (i) would
extend the maturity or reduce the amount of any payment of
principal thereof or reduce the rate or extend any date for payment
of interest thereon; and (ii) does not involve the payment of a
consent fee.
(g) Dispositions. Dispose of any of
its property, whether now owned or hereafter acquired, or without
the prior written consent of the holders of at least a majority of
the aggregate principal amount of the Notes, issue or sell any
Equity Interests of the Borrower or any of its Subsidiaries to any
Person.
(h) Transactions With Affiliates.
Enter into or be a party to any transaction including any purchase,
sale, lease or exchange of property, the rendering of any service
or the payment of any management, advisory or similar fees, with
any Affiliate.
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8. Events of Default. The
occurrence and continuance of any of the following shall constitute
an Event of Default hereunder:
(a) Failure to Pay. The Borrower
fails to pay any principal amount or interest of the Loan when
due.
(b) Breach of Representations and
Warranties. Any representation or warranty made or deemed
made by the Borrower to the Noteholder herein or in any other
Transaction Document is incorrect in any material respect on the
date as of which such representation or warranty was made or deemed
made.
(c) Breach of Covenants. The
Borrower fails to observe or perform (a) any covenant, condition,
or agreement contained in Section 6(c) or (b) any other
covenant, obligation, condition, or agreement contained in this
Note or any other Transaction Document, other than those specified
in clause (a) and Section (a), and such default shall
continue unremedied for a period of 30 days after the earlier of
the date on which (x) any officer of the Borrower becomes aware of
such failure or (y) written notice thereof shall have been given to
the Borrower from any Noteholder.
(d) Cross-Defaults. The Borrower
fails to perform or observe any covenant, term, condition or
agreement relating to any Debt (other than Debt arising under this
Note) or contained in any instrument or agreement evidencing or
relating thereto, or any other event occurs or condition exists,
the effect of which failure or other event or condition is to
cause, with the giving of notice, if required, such Debt to become
due prior to its stated maturity (or in the case of any such Debt
constituting a guarantee to become payable); or any such Debt is
declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment
or redemption or as a mandatory prepayment), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt shall
be required to be made, in each case prior to the stated maturity
thereof.
(i) the Borrower
commences any case, proceeding, or other action (i) under any
existing or future Law relating to bankruptcy, insolvency,
reorganization, or other relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to
adjudicate it as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition, or other relief with respect to it or its debts or
(ii) seeking appointment of a receiver, trustee, custodian,
conservator, or other similar official for it or for all or any
substantial part of its assets, or the Borrower makes a general
assignment for the benefit of its creditors;
(ii) there is commenced against the
Borrower any case, proceeding, or other action of a nature referred
to in Section 8(e)(i) above which (i)
results in the entry of an order for relief or any such
adjudication or appointment or (ii) remains undismissed,
undischarged, or unbonded for a period of 30 days;
(iii) there is commenced against the
Borrower any case, proceeding, or other action seeking issuance of
a warrant of attachment, execution, or similar process against all
or any substantial part of its assets which results in the entry of
an order for any such relief which has not been vacated,
discharged, or stayed or bonded pending appeal within 30 days from
the entry thereof;
(iv) the
Borrower takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set
forth in Section 8(e)(i), Section 8(e)(ii), or Section 8(e)(iii) above;
or
(v) the Borrower is
generally not, or shall be unable to, or admits in writing its
inability to, pay its debts as they become due.
(f) Judgments. One or more
judgments or decrees shall be entered against the Borrower or its
Subsidiaries and such judgment(s) or decree(s) shall not have been
vacated, discharged, or stayed or bonded pending appeal within 30
days from the entry thereof.
(g) Fundamental Transactions. A
Fundamental Transaction shall have occurred without the prior
written consent of the holders of at least a majority of the
aggregate principal amount of the Notes.
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9. Remedies. Upon the occurrence
of any Event of Default and at any time thereafter during the
continuance of such Event of Default, the Required Noteholders may,
at their option, by written notice to the Borrower (a) declare the
entire principal amount of this Note, together with all accrued
interest thereon and all other amounts payable hereunder,
immediately due and payable; and/or (b) exercise any or all of
its rights, powers or remedies under any Transaction Document or
applicable Law; provided,
however, that if an Event of Default described in
Section 8(e) shall occur, the
principal of and accrued interest on the Loan shall become
immediately due and payable without any notice, declaration, or
other act on the part of the Noteholder.
10. Miscellaneous.
(a) Notices.
(i) Any notices,
consents, waivers or other communications required or permitted to
be given under the terms of this Note must be in writing and will
be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party) or by electronic
mail; or (iii) one Business Day after deposit with an overnight
courier service, in each case properly addressed to the party to
receive the same. The addresses, facsimile numbers and e-mail
addresses for such communications shall be:
If to
the Borrower:
000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Dallas,
TX 75201
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Telephone:
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000-000-0000
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Attention:
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Chief Executive
Officer
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If to
the Noteholder:
[__________]
[__________]
[__________]
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Telephone:
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[__________]
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Facsimile:
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[__________]
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Attention:
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[__________]
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E-mail:
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[__________]
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or to
such other address, facsimile number and/or e-mail address and/or
to the attention of such other Person as the recipient party has
specified by written notice given to each other party five (5) days
prior to the effectiveness of such change. Written confirmation of
receipt (A) given by the recipient of such notice, consent, waiver
or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine or e-mail
containing the time, date, recipient facsimile number and an image
of the first page of such transmission or (C) provided by an
overnight courier service shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above,
respectively.
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(b) Governing Law; Jurisdiction; Jury
Trial. This Note shall be construed and enforced in
accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Note shall be
governed by, the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions
other than the State of New York. The Borrower hereby irrevocably
submits to the exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan, for
the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein,
and hereby agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in
an inconvenient forum or that the venue of such suit, action or
proceeding is improper. The Borrower hereby irrevocably waives
personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof to
such party at the address it set forth on the signature page hereto
and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in
any manner permitted by law. Nothing contained herein (shall be
deemed to limit in any way any right to serve process in any manner
permitted by law. Nothing contained herein shall be deemed or
operate to preclude the Noteholder from bringing suit or taking
other legal action against the Borrower in any other jurisdiction
to collect on the Borrower's obligations to the Noteholder, to
realize on any collateral or any other security for such
obligations, or to enforce a judgment or other court ruling in
favor of the Noteholder. EACH OF
THE BORROWER AND, BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(c) Counterparts; Integration;
Effectiveness. This Note and the other Transaction
Documents, and any amendments, waivers, consents, or supplements
hereto and thereto may be executed in counterparts, each of which
shall constitute an original, but all taken together shall
constitute a single contract. This Note and the other Transaction
Documents constitute the entire contract between the Parties with
respect to the subject matter hereof and supersede all previous
agreements and understandings, oral or written, with respect
thereto. Delivery of an executed counterpart of a signature page to
this Note or any other Transaction Document by facsimile or in
electronic (i.e., “pdf” or “tif”) format
shall be effective as delivery of a manually executed counterpart
of this Note or the other Transaction Document, as
applicable.
(d) Successors and Assigns. This
Note may be assigned or transferred by the Noteholder to any
Person. The Borrower may not assign or transfer this Note or any of
its rights hereunder without the prior written consent of the
Noteholder. This Note shall inure to the benefit of, and be binding
upon, the Parties and their permitted assigns.
(e) Waiver of Notice. The Borrower
hereby waives demand for payment, presentment for payment, protest,
notice of payment, notice of dishonor, notice of nonpayment, notice
of acceleration of maturity, and diligence in taking any action to
collect sums owing hereunder.
(f) USA PATRIOT Act. The Noteholder
hereby notifies the Borrower that pursuant to the requirements of
the PATRIOT Act it is required to obtain, verify, and record
information that identifies the Borrower, which information
includes the name and address of the Borrower and other information
that will allow the Noteholder to identify the Borrower in
accordance with the PATRIOT Act, and the Borrower agrees to provide
such information from time to time to the Noteholder.
(g) Interpretation. For purposes of
this Note (a) the words “include,”
“includes,” and “including” shall be deemed
to be followed by the words “without limitation”; (b)
the word “or” is not exclusive; and (c) the words
“herein,” “hereof,” “hereby,”
“hereto,” and “hereunder” refer to this
Note as a whole. The definitions given for any defined terms in
this Note shall apply equally to both the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine, and neuter
forms. Unless the context otherwise requires, references herein:
(x) to Schedules, Exhibits, and Sections mean the Schedules,
Exhibits, and Sections of this Note; (y) to an agreement,
instrument, or other document means such agreement, instrument, or
other document as amended, supplemented, and modified from time to
time to the extent permitted by the provisions thereof; and (z) to
a statute means such statute as amended from time to time and
includes any successor legislation thereto and any regulations
promulgated thereunder. This Note shall be construed without regard
to any presumption or rule requiring construction or interpretation
against the party drafting an instrument or causing any instrument
to be drafted.
9
(h) Vote to Issue, or Change the Terms of,
Notes. The affirmative vote at a meeting duly called for
such purpose or the written consent without a meeting of the
Required Noteholders shall be required for any change or amendment
or waiver of any provision to this Note or any of the Other Notes.
Any change, amendment or waiver by the Borrower and the Required
Noteholders shall be binding on the Noteholder of this Note and all
holders of the Other Notes. No consideration shall be offered or
paid to the Noteholder to amend or consent to a waiver or
modification of any provision of this Note unless the same
consideration is also offered to all of the holders of the Other
Notes.
(i) Headings. The headings of the
various Sections and subsections herein are for reference only and
shall not define, modify, expand, or limit any of the terms or
provisions hereof.
(j) Remedies, Characterizations, Other
Obligations, Breaches and Injunctive Relief. The remedies
provided in this Note shall be cumulative and in addition to all
other remedies available under this Note and any of the other
Transaction Documents at law or in equity (including a decree of
specific performance and/or other injunctive relief), and nothing
herein shall limit the Noteholder's right to pursue actual damages
for any failure by the Borrower to comply with the terms of this
Note. The Borrower covenants to the Noteholder that there shall be
no characterization concerning this instrument other than as
expressly provided herein. Amounts set forth or provided for herein
with respect to payments, conversion and the like (and the
computation thereof) shall be the amounts to be received by the
Noteholder and shall not, except as expressly provided herein, be
subject to any other obligation of the Borrower (or the performance
thereof). The Borrower acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Noteholder
and that the remedy at law for any such breach may be inadequate.
The Borrower therefore agrees that, in the event of any such breach
or threatened breach, the Noteholder shall be entitled, in addition
to all other available remedies, to seek an injunction restraining
any breach, without the necessity of showing economic loss and
without any bond or other security being required.
(k) Severability. If any term or
provision of this Note or any other Transaction Document is
prohibited by law or otherwise determined to be invalid or
unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall
be deemed amended to apply to the broadest extent that it would be
valid and enforceable, and the invalidity or unenforceability of
such provision shall not affect the validity of the remaining
provisions of this Note or such other Transaction Document so long
as this Note or such other Transaction Document as so modified
continues to express, without material change, the original
intentions of the Parties as to the subject matter hereof and the
prohibited nature, invalidity or unenforceability of the
provision(s) in question does not substantially impair the
respective expectations or reciprocal obligations of the Parties or
the practical realization of the benefits that would otherwise be
conferred upon the Parties. The Parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes
as close as possible to that of the prohibited, invalid or
unenforceable provision(s).
[Signature
Page Follows]
10
IN
WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed as of the Issuance Date set out above.
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