PROMISSORY NOTE
US$_________ as of February 28, 2000
Paramus,
New Jersey
FOR VALUE RECEIVED, the undersigned, MOTOR CLUB OF AMERICA,
a New Jersey corporation having its principal place of business
at 00 Xxxxx 00 Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000-0931("Obligor"),
hereby absolutely and unconditionally promises to pay to the
order of ___________________, a limited partnership organized
under the laws of _____ having its principal place of business at
_________________, _______, _____ _____ ("Holder") (or such other
place as Holder may designate by written notice to Obligor from
time to time), the principal amount of ___________________
_______________________________________________________________
(US$ _________) together with simple interest on the principal
amount hereof from time to time outstanding at a rate equal to
10.6050 % compounded annually, as may be adjusted in Section 1
below. Except as provided otherwise in said Section 1, interest
shall be payable in eight equal quarterly installments of
$_________ commencing May 28, 2000, and principal shall be
payable in a single installment due February 28, 2002 (the
"Maturity Date").
1. Deferrals of Maturity Date.
1. Obligor, at its sole and exclusive option, shall
have the right to defer the Maturity Date for five (5) additional
one (1)- year periods (each, a "Deferral"), provided that Obligor
notifies Holder in writing of its exercise of each said deferral
right not less than 30 days prior to the Maturity Date or
applicable anniversary thereof.
2. Upon the commencement of each Deferral, the rate of
interest otherwise payable in accordance herewith shall be
increased by 100 basis points, which increased rate shall apply to
payments of interest made after said Deferral's commencement.
3. For each Deferral, payments of interest shall be
made in accordance with Schedule A hereto.
2. Allocation of Payments; Prepayments. All payments made
in respect of this Note shall first be allocated to accrued but
unpaid interest and then to unpaid principal. Payments of prin
cipal and interest due under this Note shall be made in lawful
money of the United States of America and in immediately availa
ble funds. The principal of this Note (together with all accrued
interest thereon) may be prepaid, without premium, penalty or
discount, in whole or in part (but in amounts of principal of not
less than $500), at any time and from time to time. Amounts
prepaid hereunder are not available to be reborrowed.
3. Acceleration Upon Default. The entire unpaid principal
amount of this Note, together with all accrued and unpaid
interest, shall be immediately due and payable without written
demand, upon the failure of Obligor to make any payment of
principal or interest hereunder on the date any such payment is
due and payable.
4. Costs and Expenses; No Set-Off by Obligor; Set-Off by
Holder.
1. Costs and Expenses. Obligor agrees to pay all costs
and expenses (including, without limitation, reasonable attorneys'
fees) incurred or payable by Holder in enforcing this Note
including, without limitation, respecting the collection of any
and all amounts payable under this Note.
2. No Set-Off by Obligor. Obligor acknowledges that
its obligations to make payments hereunder are absolute and
unconditional, and agrees that such payments shall not be requested
to be, and shall not be, subject to any defense, set-off or
counterclaim of any kind or nature, or any other action similar to
the foregoing, provided that nothing contained herein shall
preclude any separate proceeding by Obligor against Holder so long
as such proceeding does not in any manner relate to or otherwise
impair the payment or the collection of any amounts due hereunder
in accordance with the terms of this Note.
3. Set-off by Holder. Holder shall have the absolute
right to apply and set-off any and all amounts payable by Holder to
Obligor, whether pursuant to any written agreement or otherwise,
against any and all amounts payable by the Obligor to Holder
under this Note or that Obligor may otherwise owe or be obligated
to pay or reimburse to Holder.
5. Miscellaneous.
1. Rights and Remedies. Holder shall have all rights
and remedies provided for by any law of any kind (including all
forms of legal and equitable relief) with respect to any
acceleration or any other breach or default hereunder and Holder
shall in addition have any other rights and remedies provided for
in this Note. All rights and remedies contemplated in the
preceding sentence shall be independent and cumulative, and may, to
the extent permitted by law, be exercised concurrently or
separately, and the exercise of any one right or remedy shall not
be deemed to be an election of such right or remedy or to preclude
or waive the exercise of any other right or remedy.
2. Severability. If any provision of this Note or the
application thereof to any person(s) or circumstance(s) shall be
invalid or unenforceable to any extent, (i) the remainder of this
Note and the application of such provision to other persons or
circumstance(s) shall not be affected thereby; and (ii) each such
provision shall, as to such person or circumstances as to which
it is not enforceable in full, be enforced to the greatest extent
permitted by law.
3. Amendments; No Waiver; Successors and Assigns. No
amendment, modification, rescission, waiver, forbearance or
release of any provision of this Note shall be valid or binding
unless made in writing and executed by a duly authorized
representative of each of Obligor and Holder, respectively. No
consent or waiver, express or implied, by Xxxxxx to or of any
breach by Xxxxxxx in the performance by it of any of its
obligations hereunder shall be deemed or construed to be a
consent to or waiver of the breach in the performance of the same
or any other obligation of Obligor hereunder. Failure on the
part of Holder to complain of any act or failure to act by
Xxxxxxx or to declare Obligor in breach irrespective of how long
such failure continues, shall not constitute a waiver by Holder
of any of its rights hereunder. All consents and waivers shall
be in writing. All of the terms, covenants and conditions
contained in this Note shall be binding upon and inure to the
benefit of the parties hereto and their respective legal
representatives, personal representatives, estates, successors
and assigns, provided that Obligor may not assign this Note or
assign or delegate any of its obligations hereunder to any other
person or entity without the prior consent of Holder and any such
attempted assignment or delegation without such consent shall be
void.
1. 4. Notices. All notices, requests and demands to
or upon the Pledgor or the Lender under or in connection with this
Note to be effective shall be in writing and shall be sent by
reputable overnight courier service or certified mail, return
receipt requested, to the addresses listed above (or such other
address as shall be designated in writing to the other party by
written notice).
5. Governing Law; Waiver of Jury Trial; Jurisdiction.
This Note, including the performance and enforceability hereof,
shall be governed by and construed in accordance with the laws of
the State of New Jersey, without regard to the principles of
conflicts of law. Obligor waives any right to trial by jury.
For the purpose of this Note and any controversy arising
hereunder, Obligor expressly and irrevocably submits and consents
in advance to the exclusive jurisdiction of the courts located in
the State of New Jersey and waives any objection (on the grounds
of lack of jurisdiction or forum non conveniens, or otherwise) to
the exercise of such jurisdiction over it by any such court
located in the State of New Jersey.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Note as of the day and year first above written.
WITNESS: OBLIGOR
MOTOR CLUB OF AMERICA
By: Xxxxxxx X. Xxxxxxx
Title:Chief Executive
Officer and Chief
Financial Officer
SCHEDULE A
Payments of Interest - Deferrals
Deferral 1
May 28, 2002 __________
August 28, 2002 __________
November 28, 2002 __________
February 28, 2003 __________
Deferral 2
May 28, 2003 __________
August 28, 2003 __________
November 28, 2003 __________
February 28, 2004 __________
Deferral 3
May 28, 2004 __________
August 28, 2004 __________
November 28, 2004 __________
February 28, 2005 __________
Deferral 4
May 28, 2005 __________
August 28, 2005 __________
November 28, 2005 __________
February 28, 2006 __________
Deferral 5
May 28, 2006 __________
August 28, 2006 __________
November 28, 2006 __________
February 28, 2007 __________
