PROMISSORY NOTE
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$________
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Date_____________
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FOR
VALUE RECEIVED, the undersigned (“Maker”),
promises to pay to the order of _______________________________________, his
successors and assignees (“Payee”),
at or at such other place as Payee may from time to time designate, in lawful
money of the United States of America, the principal sum of
_____________________, or such lesser amount that may be outstanding pursuant
to
the terms of this Promissory Note (the “Note”),
together with interest on the unpaid principal balance hereof from time to
time
outstanding, until maturity as provided below.
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1.
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Obligation.
The indebtedness evidenced by this Promissory Note.
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2.
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Interest.
The outstanding principal balance of this Note shall bear interest
at the
rate of ten percent (10%) per annum from the date hereof until the
Maturity Date (as hereinafter defined), but in no event shall such
interest exceed the Highest Lawful Rate (as hereinafter defined).
Interest
is capitalized and due and payable upon expiry of this Promissory
Note.
Any payments of principal or interest that become past due shall
bear
interest at the Highest Lawful Rate. Interest on this Note shall
be
computed on the basis of the number of actual days elapsed in a year
consisting of 365 days.
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3.
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Payments.
All amounts owing hereunder, including all accrued and unpaid interest
and
the outstanding principal amount hereof shall be due and
payable
_________
from the date the cleared funds are received at the Maker’s business
account at the Bank of America - Private Bank, Century City, California.
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4.
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Prepayments.
Maker shall have the right to pay, in whole or in part, the principal
of
this Note at any time without premium or penalty. Any payment will
first
be applied to any expenses, then to accrued interest, and thereafter
to
principal.
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5.
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Time
of Essence.
Time is of the essence with respect to all of Maker’s obligations and
agreements under this Note.
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6.
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Events
of Default.
Each of the following shall constitute an “Event of Default” under this
Note:
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(a)
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The
failure, refusal or neglect of Maker to pay when due any part of
the
principal of, or interest on, this Note after such payment has become
due
and payable; or
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(b)
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Maker
fails to perform any covenant or agreement contained herein, other
than
the payment of principal of or interest on this Note after such payment
has become due and payable, within ten (10) days after having received
written notice of such failure from Payee;
or
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(c)
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If
Maker (i) becomes insolvent, or makes a transfer in fraud of creditors,
or
makes an assignment for the benefit of creditors, or admits in writing
its
inability to pay its debts as they become due, (ii) generally is
not
paying its debts as such debts become due, (iii) has a receiver or
custodian appointed for, or a receiver or custodian takes possession
of,
all or substantially all of its assets, either in a proceeding brought
by
it or in a proceeding brought against it, and such appointment is
not
discharged or such possession is not terminated within thirty (30)
days
after the effective date thereof, or if it consents or acquiesces
in such
appointment or possession, (iv) files a petition for relief under
the
United States Bankruptcy Code or any other present or future federal
or
state insolvency, bankruptcy or similar laws (all of the foregoing
hereinafter collectively called “Applicable
Bankruptcy Law”)
or an involuntary petition for relief is filed against it under any
Applicable Bankruptcy Law and such involuntary petition is not dismissed
within thirty (30) days after the filing thereof, or an order for
relief
naming it is entered under any Applicable Bankruptcy Law, or any
composition, rearrangement, extension, reorganization or other relief
of
debtors now or hereafter existing is requested or consented to by
it, (v)
fails to have discharged within a period of thirty (30) days any
attachment, sequestration or similar writ levied upon any of its
property,
or (vi) fails to pay within thirty (30) days any final money judgment
against it.
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Nothing
contained in this Note shall be construed to limit the Events of Default
enumerated hereinabove and all such Events of Default shall be
cumulative.
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7.
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Remedies.
Maker agrees that upon the occurrence of any Event of Default, the
holder
of this Note may, at its option, without further notice or demand,
(a)
declare the outstanding principal balance of and accrued but unpaid
interest on this Note at once due and payable, (b) pursue any and
all
other rights, remedies and recourses available to the holder hereof,
including, but not limited to, any such rights, remedies or recourses,
at
law or in equity, or (c) pursue any combination of the foregoing.
All
rights and remedies of such holder shall be cumulative and the holder
shall be entitled to all the rights of a holder in due course of
a
negotiable instrument.
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8.
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No
Waiver.
No delay on the part of Payee or other holder of this Note in the
exercise
of any power or right under this Note, shall operate as a waiver
hereof,
nor shall a single or partial exercise of any power or right preclude
other or further exercise thereof or the exercise of any other power
or
right. Enforcement by the holder of this Note for the payment hereof
shall
not constitute an election by such holder of remedies so as to preclude
the exercise of any other remedy available to such
holder
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9.
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Waiver.
Except as otherwise expressly set forth herein, Maker and all endorsers,
sureties, and guarantors hereof hereby jointly and severally waive
all
exemption rights under any applicable law, and also waive presentment
for
payment, demand, notice of nonpayment, valuation, appraisement, protest,
demand, dishonor, notice of protest, notice of intent to accelerate,
notice of acceleration, and all other notices, and without further
notice
hereby consent to all renewals, extensions, or partial payments either
before or after maturity.
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10.
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Severability.
The invalidity, or unenforceability in particular circumstances,
of any
provision of this Note shall not extend beyond such provision or
such
circumstances and no other provision of this Note shall be affected
thereby.
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11.
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Highest
Lawful Rate.
It is expressly stipulated and agreed to be the intent of Maker and
Payee
at all times to comply with the applicable state and federal law
governing
the maximum rate or amount of interest payable on or in connection
with
this Note (or applicable United States federal law to the extent
that it
permits Payee to contract for, charge, take, reserve or receive a
greater
amount of interest than under state law). If the applicable law is
ever
judicially interpreted so as to make the amount of interest exceed
any
applicable law or regulation, or render usurious any amount called
for
under this Note, or contracted for, charged, taken, reserved or received
with respect to the indebtedness evidenced by this Note (the “Loan”),
or if acceleration of the maturity of this Note or if any prepayment
by
Maker results in Maker having paid any interest in excess of that
permitted by law, then it is Maker’s and Payee’s express intent that all
excess amounts theretofore collected by Xxxxx be credited on the
principal
balance of this Note (or, if this Note has been or would thereby
be paid
in full, refunded to Maker), and the provisions of this Note and
the other
Agreements immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity
of the
execution of any new document, so as to permit the recovery of the
fullest
amount called for hereunder and thereunder, while complying in all
respects with applicable law. The right to accelerate the maturity
of this
Note does not include the right to accelerate any interest that has
not
otherwise accrued on the date of such acceleration, and Payee does
not
intend to collect any unearned interest in the event of acceleration.
All
sums paid or agreed to be paid to Payee for the use, forbearance
or
detention of the Loan shall, to the extent permitted by applicable
law, be
amortized, prorated, allocated and spread throughout the full term
of the
Loan until payment in full so that the rate or amount of interest
on
account of the Loan does not exceed the applicable usury ceiling.
Notwithstanding any provision contained in this Note or in any of
the
other Agreements that permits the compounding of interest, including
without limitation any provision by which any of the accrued interest
is
added to the principal amount of this Note, the total amount of interest
that Maker is obligated to pay and Payee is entitled to receive with
respect to this Note shall not exceed the amount calculated on a
simple
(i.e.,
non-compounded) interest basis at the Highest Lawful Rate on principal
amounts actually advanced to or for the account of Maker, including
the
initial principal amount of this Note and any advances made pursuant
to
any of the Agreements (such as for the payment of taxes, insurance
premiums and the like). As used herein, the term “Highest
Lawful Rate”
shall mean the maximum non-usurious rate of interest which may be
lawfully
contracted for, charged, taken, reserved or received by Payee from
Maker
in connection with the Loan under the applicable state law (or applicable
United States federal law, to the extent that it permits Payee to
contract
for, charge, take, reserve or receive a greater amount of interest
than
under state law).
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12.
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Notices.
All notices or demands required or permitted hereunder shall be in
writing
and shall be delivered personally or sent by registered or certified
mail,
postage prepaid:
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If
to the
Payee:
If
to the
Maker:
000
X
Xxxxx Xxxxx
Suite
120
Los
Angeles, CA 90210
Telephone:
000-000-0000
Fax:
000-000-0000
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13.
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Governing
Law and Exclusive Venue.
This Note shall be construed in accordance with and governed by the
laws
of the State of California. The Payee, by acceptance hereof, and
Maker
hereby agree any legal action in connection with this Note shall
be
instituted only in the courts of
California.
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14.
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Successors
and Assigns.
The provisions of this Note are binding on the assigns and successors
of
the Maker and shall inure to the benefit of the holder hereof and
such
holder’s successors and assigns.
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15.
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Headings.
The headings of the sections of this Note are inserted for convenience
only and shall not be deemed to constitute a part
hereof
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IN
WITNESS WHEREOF, the undersigned has executed this Note to be effective as
of
the date first written above.
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By:
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Name:
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Title:
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