EXHIBIT 10.35
SECURED PROMISSORY NOTE
FOR VALUE RECEIVED, GENIUS PRODUCTS, INC., a Nevada corporation
(hereinafter called "Borrower"), hereby promises to pay to the order of
_________________________________, ______________________________ [address] the
"Holder"), without demand, the sum of _____________________________________
Dollars ($__________), with simple interest accruing at the annual rate of ten
and one-half percent (10.5%), on December 31, or any earlier date upon which the
outstanding principal balance, together with interest accrued thereon, has been
accelerated and is due and payable in full (the "Maturity Date").
The following terms shall apply to this Note:
ARTICLE I
PAYMENT RELATED PROVISIONS
1.1 PAYMENT GRACE PERIOD. The Borrower shall have a ten (10) day
grace period to pay any monetary amounts due under this Note.
1.2 INTEREST RATE. Interest payable on this Note shall accrue at the
annual rate of ten and a half percent (10.5%) and be payable March 31, 2004 and
quarterly thereafter, and on the Maturity Date, accelerated or otherwise, when
the principal and remaining accrued but unpaid interest shall be due and
payable, or sooner as described below. Interest shall be computed on the actual
number of days elapsed divided by a 365-day year.
ARTICLE II
EVENT OF DEFAULT
The occurrence of any of the following events of default ("Event of
Default") shall, at the option of the Majority in Interest (as defined in the
Collateral Agent Agreement discussed below), make all sums of principal and
interest then remaining unpaid hereon and all other amounts payable hereunder
immediately due and payable, all without demand, presentment or notice, or grace
period, all of which hereby are expressly waived, except as set forth below:
2.1 FAILURE TO PAY PRINCIPAL OR INTEREST. The Borrower fails to pay
any installment of principal or interest hereon when due and such failure
continues for a period of ten (10) days after the due date. The ten (10) day
period described in this Section 2.1 is the same ten (10) day period described
in Section 1.1 hereof.
2.2 BREACH OF COVENANT. The Borrower breaches any material covenant
or other term or condition of this Note in any material respect and such breach,
if subject to cure, continues for a period of ten (10) days after written notice
to the Borrower from the Holder.
2.3 BREACH OF REPRESENTATIONS AND WARRANTIES. Any material
representation or warranty of the Borrower made herein or in any agreement,
statement or certificate given in writing pursuant hereto or in connection
therewith shall be false or misleading in any material respect.
2.4 RECEIVER OR TRUSTEE. The Borrower shall make an assignment for
the benefit of creditors, or apply for or consent to the appointment of a
receiver or trustee for it or for a substantial part of its property or
business; or such a receiver or trustee shall otherwise be appointed.
2.5 BANKRUPTCY. Bankruptcy, insolvency, reorganization or
liquidation proceedings or other proceedings or relief under any bankruptcy law
or any law for the relief of debtors shall be instituted by or against the
Borrower and if instituted against the Borrower are not dismissed within 45 days
of initiation.
ARTICLE III
SECURITY INTEREST; COLLATERAL
This Note is, as of the date hereof, secured by a security interest
in and a lien on the Collateral (as defined in the Security Agreement of even
date herewith) granted on behalf of the Holder to Wachovia Bank, National
Association in its capacity as Collateral Agent (the "Collateral Agent"), for
the benefit of the Lenders, pursuant to a Security Agreement delivered by the
Borrower to Holder. The Collateral Agent Agreement of even date herewith (the
"Collateral Agent Agreement") sets forth the understandings and agreements by
and between the Collateral Agent and the Lenders with respect to the loans
evidenced hereby.
By execution hereof, with respect to the Borrower, and by acceptance
hereof, with respect to the Holder, each of the Borrower and the Holder
acknowledge the Collateral Agent's rights, duties and obligations arising in
connection with this Note, in each case as more particularly described in the
Collateral Agent Agreement, and agree to act in accordance with the terms of the
Collateral Agent Agreement.
ARTICLE IV
MISCELLANEOUS
4.1 FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the
part of the Holder hereof in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing hereunder are cumulative to, and not exclusive of, any rights
or remedies otherwise available.
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4.2 NOTICES. Any notice herein required or permitted to be given
shall be in writing and may be personally served or sent by fax transmission
(with copy sent by regular, certified or registered mail or by overnight
courier). For the purposes hereof, the address and fax number of the Holder is
as set forth on the first page hereof. The address and fax number of the
Borrower shall be Genius Products, Inc., 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx
Xxxxx, XX 00000, fax number: (000) 000-0000. Both Xxxxxx and the Borrower may
change the address and fax number for service by service of notice to the other
as herein provided.
4.3 AMENDMENT PROVISION. The term "Note" and all reference thereto,
as used throughout this instrument, shall mean this instrument as originally
executed, or if later amended or supplemented, then as so amended or
supplemented.
4.4 ASSIGNABILITY. This Note shall be binding upon the Borrower and
its successors and permitted assigns, and shall inure to the benefit of the
Holder and its successors and assigns, and may be assigned by the Holder;
provided, however, that no such assignment shall be effective until such time as
(a) the Holder notifies Collateral Agent in writing of the proposed assignment
and (b) the assignee executes a counterpart to the Collateral Agent Agreement,
thereby evidencing such assignee's intent to be bound by the terms thereof.
4.5 COST OF COLLECTION. If default is made in the payment of this
Note, the Borrower shall pay the Holder hereof reasonable costs of collection,
including reasonable attorneys' fees.
4.6 GOVERNING LAW. This Note shall be governed by and construed in
accordance with the laws of the State of New York. Any action brought by either
party against the other concerning the transactions contemplated by this Note
shall be brought only in the state courts of New York or in the federal courts
located in New York County in the State of New York. Both parties and the
individual signing this Note on behalf of the Borrower agree to submit to the
jurisdiction of such courts. The prevailing party shall be entitled to recover
from the other party its reasonable attorney's fees and costs.
4.7 MAXIMUM PAYMENTS. Nothing contained herein shall be deemed to
establish or require the payment of a rate of interest or other charges in
excess of the maximum permitted by applicable law. In the event that the rate of
interest required to be paid or other charges hereunder exceed the maximum
permitted by such law, any payments in excess of such maximum shall be credited
against amounts owed by the Borrower to the Holder and thus refunded to the
Borrower.
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IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be signed in
its name by its Chief Executive Officer on this _____ day of ______________,
2003.
GENIUS PRODUCTS, INC.
By:
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Xxxxx Xxxxxxx, CEO
WITNESS:
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