EXHIBIT 10.8
NOTE SECURED BY DEED OF TRUST
Borrowers: Xxx X. and Xxxxxxx Xxxxxx Xxxxxx: Xxxxx Intercontinental Trading
0000 Xxxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000 00000 Xxxxxx Xxxxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
______________________________________________________________________________
PRINCIPAL AMOUNT: $500,000.00 DATE OF NOTE: FEBRUARY 19, 2003
For value received, the undersigned, XXX X. XXXXXX and XXXXXXX XXXXXX
(hereinafter collectively referred to as "Borrower"), promise to pay to the
order of XXXXX INTERCONTINENTAL TRADING COMPANY (hereafter referred to as
"Lender"), at its office address described above or at Lender's option, at such
other place as may be designated from time to time by Xxxxxx, in lawful money of
the United States of America, the sum of FIVE HUNDRED THOUSAND DOLLARS
($500,000), with interest on the unpaid principal computed from May 1, 2003 at
an interest rate of three percent (3%). Payment is to be made in thirty-six
(36) equal monthly installments of FOURTEEN THOUSAND FIVE HUNDRED FORTY DOLLARS
AND SIXTY CENTS ($14,540.60), commencing on May 1, 2003, and continuing
thereafter on the 1st day of each successive month for thirty-six (36) months.
Upon execution of this Note, Xxxxxxxx shall deliver to Lender, 36 post-dated
checks for payment in accordance with the terms of this Note. If any payment is
not received by Lender by the 1st of each month, then three percent (3%) of the
then-due payment shall be charged for the late payment which shall be due on the
next calendar day after the payment is due in addition to interest. Any checks
received and returned for insufficient funds shall result in a charge of $50.00
plus any late fees that may accrue. Xxxxxxxx agrees to pay Xxxxxx's legal fees
and the Title fees incurred in connection with making this secured loan.
Payment of any installment of principal or interest owing on this Note may
be made prior to the maturity date without penalty. Upon default of Borrower in
making any payment due under the terms of this Note, the interest rate on this
Note shall thereafter be the maximum legal rate, at Lender's election.
The term "Indebtedness" as used herein shall mean the indebtedness
evidenced by this Note, including principal, interest and other expenses,
whether contingent, now due or hereafter to become due. The term "Collateral" as
used in the Note shall mean the real property located at 0000 Xxxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxx 00000 as well as any funds, guaranties, machinery and
equipment, inventory, accounts receivable or other personal or real property or
rights of any nature whatsoever, or the proceeds thereof which may have been,
are, or hereafter may be, assigned, pledged or hypothecated, directly by the
undersigned or by third parties, in connection with, or as security for, the
Indebtedness or any part thereof.
The Indebtedness shall immediately become due and payable, without notice
or demand, upon the appointment of a receiver or liquidator, whether voluntary
or involuntary, for the undersigned or for any Collateral; or upon the filing of
a petition by or against the undersigned under the provisions of any State
insolvency law or under the provisions of the Bankruptcy Reform Act of 1978, as
amended; or upon the making by the undersigned of an assignment for the benefit
of its creditors. The Indebtedness shall immediately become due and payable,
without notice or demand, upon the sale or transfer of a substantial portion of
the assets of Borrower, other than in the ordinary course of business. Lender
may declare a default immediately and without notice or demand or any right to
cure by the undersigned upon the occurrence of all or any of the following
events:
1. Failure to pay any part of the Indebtedness when due;
2. Nonperformance by the undersigned of any agreement with, or any
condition imposed by Xxxxxx;
3. Undersigned's failure in any application to Lender to disclose any
fact deemed by Xxxxxx to be material or of the making in any other documents
submitted in connection with the application, of any misrepresentation by, on
behalf of, or for the benefit of the undersigned;
4. The reorganization (other than a reorganization pursuant to any of
the provisions of the Bankruptcy Reform Act of 1978, as amended) or merger or
consolidation (or the making of the any agreement therefor) without the prior
written consent of Lender;
5. The undersigned's failure duly to account, to Xxxxxx's satisfaction,
at such time or times as Lender may require, for any of the Collateral, or
proceeds, coming into the control of the undersigned; and/or
6. The institution of any suit affecting the undersigned deemed by
Lender to affect adversely its interest hereunder in the Collateral or
otherwise.
Lender's failure to exercise its rights under this paragraph shall not
constitute a waiver of any such default.
Upon the nonpayment of the Indebtedness, or any part thereof, when due,
whether by acceleration or otherwise, Lender is empowered to sell, assign and
deliver the whole or any part of the Collateral at public or private sale,
without demand, advertisement or notice of the time or place of sale or of any
adjournment thereof, which are hereby expressly waived. After deducting all
expenses incidental to or arising from such sale or sales, Lender may apply the
residue of the proceeds to the payment of the Indebtedness, as it shall deem
proper, returning the excess, if any, to the undersigned. The undersigned hereby
waives all right of redemption or appeasement, whether before or after sale.
Lender is further empowered to collect, or cause to be collected or
otherwise to be converted into money, all or any part of the Collateral, by suit
or otherwise, and to surrender, compromise, release, renew, extend, exchange or
substitute any item of the Collateral in transactions with the undersigned or
any third party, irrespective of any assignment thereof by the undersigned, and
without prior notice to or consent of the undersigned or any assignee. Whenever
any item of the Collateral shall not be paid when due, or otherwise shall be in
default, whether or not the Indebtedness, or any part thereof, has become due,
Lender shall have the same rights and powers with respect to such item of the
Collateral as are granted in this paragraph in case of nonpayment of the
Indebtedness, or any part thereof, when due. None of the rights, remedies,
privileges or powers of Lender expressly provided for therein shall be
exclusive, but each of them shall be cumulative with and in addition to every
other right, remedy, privilege and power now or hereafter existing in favor of
Lender, whether at law or equity, by statute or otherwise.
The undersigned agree to take all necessary steps to administer, supervise,
preserve and protect the Collateral; and regardless of any action taken by
Xxxxxx, there shall be no duty upon Lender in this respect. The undersigned
shall pay all expenses of any nature, whether incurred in or out of court and
whether incurred before or after this Note shall become due at is maturity date
or otherwise, including, but not limited to, reasonable attorney's fees and
costs, which Lender may deem necessary or proper in connection with the
satisfaction of the Indebtedness or the administration, supervision,
preservation, protection of (including, but not limited to, the maintenance of
adequate insurance) or the realization from the Collateral. Lender is authorized
to pay at any time, and from time to time, any or all of such expenses, add the
amount of such payment to the amount of the Indebtedness and charge interest
thereon at the rate specified with respect to the principal amount of this Note.
The security rights of Xxxxxx and its assigns hereunder shall not be
impaired by Xxxxxx's sale, hypothecation or rehypothecation of any note of the
undersigned or any item of Collateral or by any indulgence, including, but not
limited to:
1. Any renewal, extension or modification which Lender may grant with
respect to the Indebtedness or any part thereof;
2. Any surrender, compromise, release, renewal, extension, exchange or
substitution which Lender may grant in respect of the Collateral; or
3. Any indulgence granted in respect of any endorser, guarantor or
surety.
The purchaser, assignee, transferee, pledgee of this Note, the Collateral and
guaranty, and any other document (or any of them) sold, assigned, transferred,
pledged or repledged shall forthwith become vested with and entitled to exercise
all the powers and rights given by this Note and all applications of the
undersigned to Lender or, as if the purchaser, assignee, transferee or pledge
were originally named as Payee in this Note and in the application(s).
This Agreement constitutes the sole and only agreement between the parties
respecting the terms hereto. Any prior agreements, whether oral or in writing,
shall be void and of no further effect.
In the event that the interest rate herein exceeds the maximum allowable
interest rate, the interest rate will automatically be reduced to the maximum
interest rate permissible under the law.
In the event that any provision of this Note or portion thereof is
adjudicated by court judgment, order or decree by a Court of competent
jurisdiction to be void, invalid or otherwise unenforceable, the remaining
provisions or portions thereof shall remain fully valid, enforceable and
binding.
This Agreement may only be modified by a writing signed by both parties to
this Agreement.
Lender may, with or without notice, assign this Note and underlying
agreements in whole or in part. This note shall inure to the benefit of Lender,
its successors and assigns and shall bind the undersigned, and the undersigned's
heirs, executors, administrators, successor and assigns.
Any waiver of a specific default by Lender under the terms of this
Agreement shall only be a waiver as to that one specific instance of default and
shall not act as a waiver of any or all other subsequent waivers. Waiver, if it
should occur, may only occur in writing and may not be done orally or by the
passage of time.
DATED February ____, 2003 BORROWERS
By:___________________________________
Xxx X. Xxxxxx
By:___________________________________
Xxxxxxx Xxxxxx
