Exhibit 10.3(a)
PROMISSORY NOTE
Loan No.: _______________________ __________________, 19______
Redwood City, California
FOR VALUABLE CONSIDERATION,
___________________________________________________ (herein "Maker"), hereby
promises to pay to ______________________________________________________, or
order (herein "Payee"), at the address set forth below, or at such other address
as the holder hereof may, from time to time designate, the sum of
___________________________ ____________________________ ($_______________) with
interest on the unpaid balance of the principal sum disbursed by Lender to or
for the account of Borrower at the interest rate specified below.
1. Interest
Maker agrees that interest earned by and payable to Payee hereunder
(Interest) shall be a fixed rate per annum equal to ______________ percent
(___%). Interest shall be calculated for actual days elapsed on the basis of a
360-day year, which results in higher interest payments than if a 365-day were
used.
Interest shall be payable monthly on the first day of each consecutive
month beginning on the first such date after the first advance under this Note
and continuing through ________________ ("Maturity Date"), on which date the
entire balance of the unpaid principal sum then disbursed and all interest
accrued and unpaid shall be due and payable.
2. Prepayment
The right is reserved by Maker to prepay the outstanding principal amount
in whole or in part together with accrued interest thereon. All prepayments
shall be applied to the most remote principal installments then unpaid under
this Note.
3. Late Charge
If Payee fails to receive any payments of interest or principal within ten
(10) days after the date the same is due and payable, a late charge to
compensate Payee for damages Payee will suffer as a result shall be immediately
due and payable. Maker recognizes that a default by Maker in making the payments
agreed to be paid when due will result in Xxxxx's incurring additional expenses
in servicing the loan, including, but not limited to sending out notices of
delinquency, computing interest, and segregating the delinquent sums from not
delinquent sums on all accounting, loan and data processing records, in loss to
Payee of the use of the money due, and in frustration to Payee in meeting its
other financial commitments. Maker agrees that if for any reason Maker fails to
pay any amounts due under this Note so that Xxxxx fails to receive such payments
within ten (10) days after the same are due and payable, Payee shall be entitled
to damages for the detriment caused thereby, but that it is extremely difficult
and impractical to ascertain the extent of such damages. Maker therefore agrees
that a sum equal to $.06 for each $1.00 of each payment that becomes delinquent
ten (10) days after its due date, is a reasonable estimate of the fair average
compensation for the loss and damages Payee will suffer, that such amount shall
be presumed to be the amount of damages sustained by Xxxxx in such case, and
that Maker agrees to pay Payee this sum on demand.
4. Default
If there exists any Event of Default, as defined below, under the terms of
this Note or under the terms of the Construction Deed of Trust, Assignment of
Leases and Rents, Security Agreement and Fixture Filing ("Deed of Trust"),
Holdback Agreement, or any other document executed in connection with this Note
(herein called "Loan Documents"), Payee or the holder hereof is expressly
authorized without notice or demand of any kind to make all sums of interest and
principal and any other sums owing under this Note immediately due and payable
and to apply all payments made on this Note or any of the Loan Documents to the
payment of any such part of any Event of Default as it may elect.
An Event of Default shall be either (1) a default in the payment of the
whole or in any part of the several installments of this Note when due and such
default continues for five (5) days following written notice from Payee, or (2)
any of the Events of Default contained in any of the Loan Documents. At any time
after an Event of Default, during the continuance of such Event of Default, the
entire unpaid balance of principal, together with interest accrued thereon,
shall, at the option of the legal holder hereof and without notice (except as
specified in any Loan Documents) and without demand or presentment, become due
and payable at the place of payment. Anything contained herein or in any of the
Loan Documents to the contrary notwithstanding, the principal balance together
with accrued interest thereon so accelerated and declared due as aforesaid shall
continue to bear interest and shall include compensation for late payments on
any and all overdue installments as described above.
If a default has occurred, the failure of Payee or the holder hereof to
promptly exercise its rights to declare the indebtedness remaining unpaid
hereunder to be immediately due and payable shall not constitute a waiver of
such rights while such default continues nor a waiver of such right in
connection with any future default.
Maker hereby waives presentment for payment, protest and demand, and notice
of protest, demand, dishonor, nonpayment and nonperformance including notice of
dishonor with respect to any check or draft used in payment of any sum due
hereunder.
5. Legal Limits
All agreements between Maker and Payee are hereby expressly limited so that
in no event whatsoever, whether by reason of deferment in accordance with this
Note or under any agreement or by virtue of the advancement of the loan
proceeds, acceleration or maturity of the loan, or otherwise, shall the amount
paid or agreed to be paid to the Payee for the loan, use, forbearance or
detention of the money to be loaned hereunder or to compensate Payee for damages
to be suffered by reason of a late payment hereof, exceed the maximum
permissible under applicable law. If, from any circumstances whatsoever,
fulfillment of any provision hereof, or of any provision in any of the Loan
Documents at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law, ipso facto the obligations
to be fulfilled shall be reduced to the limit of such validity. This provision
shall never be superseded or waived and shall control every other provision of
all agreements between Maker and Payee.
6. Attorneys' Fees
If an action is instituted on this Note, or if any other judicial or
non-judicial action is instituted by the holder hereof or by any other person,
and an attorney is employed by the holder hereof to appear in any such action or
proceeding or to reclaim, sequester, protect, preserve or enforce the holder's
interest in the real property security or any other security for this Note,
including, but not limited to, proceedings to foreclose the loan evidenced
hereby, proceedings under the United States Bankruptcy Code, or in eminent
domain, or under the probate code, or in connection with any state or federal
tax lien, or to enforce an assignment of rents, or for the appointment of a
receiver, or disputes regarding the proper disbursement of construction loan
funds, the Maker and every endorser and guarantor hereof and every person who
assumes the obligations evidenced by this Note and the Loan Documents, jointly
and severally promise to pay reasonable attorney's fees for services performed
by the holder's attorneys, and all costs and expenses incurred incident to such
employment. If Maker is the prevailing party in any action by Maker pursuant to
this Note, Payee shall pay such attorneys fees as the court may direct.
7. Interest After Expiration
If the entire balance of principal and accrued interest is not paid in full
on the Maturity Date, without waiving or modifying in any way any of the rights,
remedies or recourse, Payee may have under this Note or under any of the Loan
Documents by virtue of this default, the entire unpaid balance of principal and
accrued interest shall bear interest from the Maturity Date until paid in full
at the higher of: (a) _______________ percent (___%) per annum; or (b) a
fluctuating rate per annum at all times equal to the discount rate of the
Federal Reserve of San Francisco (Discount Rate) plus ______________ percent
(___%) ("Maturity Interest Rate"). If at any time after the Maturity Date, the
Discount Rate (or any previously substituted alternative index) is no longer
available, is unverifiable, or is no longer calculated in substantially the same
manner as before, then Payee may, in its sole and absolute discretion, select
and substitute an alternative index over which Payee has no control. In
addition, the holder hereof shall have any and all other rights and remedies
available at law or in equity or under the Deed of Trust.
8. Security
This Note is secured by and is entitled to the benefits of the Deed of
Trust dated on or about the date of this Note executed by Maker to Gymno
Corporation, a California corporation, as Trustee, for the use and benefit of
Payee covering and relating to the fee title interest of Maker in certain real
property located at
__________________________________________________________________ in the County
of _______________ , California more particularly described in Exhibit A to the
Deed of Trust (Property).
The provisions of the Deed of Trust are incorporated herein by reference as
if set forth in full, and this Note is subject to all of the covenants and
conditions therein contained.
9. Acceleration
Without limiting the obligations of Maker or the rights and remedies of
Payee or the holder hereof under the terms and covenants of this Note and the
Deed of Trust, Maker agrees that Payee shall have the right, at its sole option,
to declare any indebtedness and obligations hereunder or under the Deed of
Trust, irrespective of the Maturity Date specified herein, due and payable in
full if: (1) Maker or any one or more of the tenants-in-common, joint tenants,
or other persons comprising Maker sells, enters into a contract of sale,
conveys, alienates or encumbers the Property or any portion thereof or any
fractional undivided interest therein, or suffers Maker's title or any interest
therein to be divested or encumbered, whether voluntarily or involuntarily, or
leases with an option to sell, or changes or permits to be changed the character
or use of the Property, or drills or extracts or enters into a lease for the
drilling for or extracting of oil, gas or other hydrocarbon substances or any
mineral of any kind or character on the Property; (2) The interest of any
general partner of Maker (or the interest of any general partner in a
partnership that is a partner) is assigned or transferred; (3) More than
twenty-five percent (25%) of the corporate stock of Maker (or of any corporate
partner or other corporation comprising Maker) is sold, transferred or assigned;
(4) There is a change in beneficial ownership with respect to more than
twenty-five percent (25%) of Maker (if Maker is a trust or other legal entity)
or of any partner or tenant-in-common of Maker which is a trust or other legal
entity; or (5) a default has occurred hereunder or under any Loan Document and
is continuing. In such case, Payee or other holder of this Note may exercise any
and all of the rights and remedies and recourses set forth in the Deed of Trust
and as granted by law. Maker and any successor who acquires any record interest
in the Property agrees to notify Xxxxx promptly in writing of any transaction or
event described in this section.
10. Governing Law and Severability
This Note is made pursuant to, and shall be construed and governed by, the
laws of the State of California. If any paragraph, clause or provision of this
Note or any of the Loan Documents is construed or interpreted by a court of
competent jurisdiction to be void, invalid or unenforceable, such decision shall
affect only those paragraphs, clauses or provisions so construed or interpreted
and shall not affect the remaining paragraphs, clauses and provisions of this
Note or the other Loan Documents.
11. Time of Essence
Time is of the essence of this Note.
12. Payment Without Offset
Principal and interest shall be paid without deduction or offset in
immediately available funds in lawful money of the United States of America.
Payments shall be deemed received only upon actual receipt by Xxxxx and upon
Xxxxx's application of such payments as provided herein.
13. Notices
All notices under this Note shall be in writing and shall be effective upon
personal delivery to the authorized representatives of either party or upon
being sent by certified mail, return receipt requested, postage prepaid,
addressed to the following respective parties as follows:
MAKER: ________________________________
________________________________
________________________________
Attn: ________________________________
PAYEE: ________________________________
000 Xx Xxxxxx Xxxx, Xxxxx X
Xxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx
14. Collection
Any remittances by check or draft may be handled for collection in
accordance with the practices of the collecting party and any receipt issued
therefor shall be void unless the amount due is actually received by Payee.
15. Assignment
Payee or other holder of this Note may assign all of its rights, title and
interest in this Note to any person, firm, corporation or other entity without
the consent of Maker.
16. Relationship
The relationship of the parties hereto is that of borrower and lender and
it is expressly understood and agreed that nothing contained herein or in any of
the Loan Documents shall be interpreted or construed to make the parties
partners, joint venturers or participants in any other legal relationship except
for borrower and lender.
17. Remedies
No right, power or remedy given Payee by the terms of this Note, or in the
Loan Documents is intended to be exclusive of any right, power or remedy, and
each and every such right, power or remedy shall be cumulative and in addition
to every other right, power or remedy given to Payee by the terms of any of the
Loan Documents or by any statute against Maker or any other person. Every right,
power and remedy of Payee shall continue in full force and effect until such
right, power or remedy is specifically waived by an instrument in writing,
executed by Xxxxx.
18. Headings
The subject headings of the paragraphs of this Note are included for
purposes of convenience only, and shall not affect the construction or
interpretation of any of its provisions.
Maker: _________________________________
_________________________________
