DEMAND NOTE
Amount: $600,000.00 Date: April 24, 2000
Chicago, Illinois
ON DEMAND AND IF NO DEMAND IS MADE, ON JUNE 30th, 2000, 5TH AVENUE CHANNEL
CORPORATION, a Florida corporation (hereinafter "Borrower"), having its office
located at 0000 X.X. 000xx Xxxxxx, Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000, promises to
pay to the order of FRANKLIN CAPITAL CORPORATION ("lender"), 00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, the principal sum of Six Hundred Thousand and
no/100 ($600,000.00) Dollars (U.S.), or if less, the aggregate unpaid principal
amount of all advances made by the lender to the Borrower under this Note,
together with interest on the unpaid principal balances hereof from time to time
unpaid calculated at a variable rate per annum equal to three percent (3.0%)
above the prime rate of interest announced from time to time by Bank of America
NT & SA, or its successor in interest ("Bank of America"). Interest shall be
payable concurrently with the payment of the outstanding principal amount of
this Note. Interest shall be based upon a 360-day year and charged on the
outstanding daily balances. After demand, interest shall accrue on the entire
unpaid principal balances hereof calculated at a variable rate per annum equal
to ten percent (10%) above Bank of America's prime rate. Any change in the
interest rate shall be effective on the date of a change in Bank of America's
prime rate.
In addition to said interest payment, Xxxxxxxx promises to pay to Lender a
service charge on the outstanding principal balance of this Note calculated as
follows: (i) one and one-third percent (1.33%) for the first thirty (30) days or
portion thereof (in the event of a repayment of this Note prior to the
expiration of said thirty (30) day period, and (ii) zero point four five percent
(0.45%) for each ten days or part thereof after said thirty day period that this
Note remains unpaid.
All advances and all payments made on account of the principal, interest and
service charges hereof shall be evidenced by entries on the books and records of
the Lender and shall be rebuttable presumptive evidence of the principal amount,
interest and service charges owing hereon. In addition, Xxxxxxxx agrees to pay
Lender a late charge on all payments made on this Note received more than ten
(10) days after the due date thereof in an amount equal to five percent (5.00%)
of the late payment.
Unless otherwise agreed, all payments shall be first applied to accrued interest
and service charges to the date of payment, then to unpaid principal, and any
remaining amount to any unpaid Collection Costs (as hereinafter defined).
/s/ MR
This Note is secured by a Factoring Agreement of even xxxx herewith between
Borrower as seller and Lender as purchaser (such agreement, as amended or
restated from time to time, the "Factoring Agreement"). In the event of
nonpayment when due of any amount payable on this Note or a Default (as defined
in the Factoring Agreement) shall occur, then this Note and all other
obligations of the Borrower to the Lender, at the option of Lender, shall
immediately become due and payable, without notice or demand on the Borrower,
together with all expenses, costs and attorneys' fees incurred or expended by
the lender in enforcing its rights hereunder which shall become additional
indebtedness immediately due and payable hereon, and lender may exercise any of
the remedies provided by the Factoring Agreement, any other document executed by
Borrower, or under applicable Illinois law.
Borrower acknowledges that this Note is an obligation which is payable on demand
and that notwithstanding anything to the contrary contained herein or in any
other instrument, agreement, or other document to which Borrower and/or Lender
is a party, the enumeration in any such document of specific events of default,
conditions and/or covenants relating to the loan evidenced by this Note or to
any other obligation of the Borrower to Lender, shall not be construed to
qualify, define, or otherwise limit in any way Xxxxxx's right, power, or
ability, at any time, to make demand for payment of the principal of, interest
and service charges on this Note, and Xxxxxxxx agrees that the occurrence of any
event of default or breach of any condition or covenant in any such document is
not the only basis for demand to be made on this Note.
Lender may, at any time or times hereafter, after demand or default, appropriate
and apply toward the payment of this Note any moneys, credits, deposits, checks,
accounts, drafts, securities, certificates of deposit or other property
belonging to the Borrower, in the possession of or under the control of the
lender, as well as any indebtedness of the Lender to the Borrower, then due or
to become due.
Borrower hereby waives presentment, demand, notice of dishonor and all other
notices and demands in connection with the enforcement of the Lender's rights
hereunder. Any failure of the Lender to exercise any right hereunder shall not
be construed as a waiver of the right to exercise the same or any other right at
any other time.
Advances under this Note may be made by the Lender upon the oral or written
request of any person whose authority to so act by corporate resolution or other
instruments lodged with the Lender has not been revoked by a writing theretofore
received by the lender at its office. Any such advance shall be conclusively
presumed to have been made by the Lender to or for the benefit of the Borrower.
The Borrower does hereby irrevocably confirm, ratify, and approve all such
advances by the Lender and does hereby indemnify the Lender against losses and
expenses (including attorneys' costs, and reasonable attorneys' fees) and shall
hold the Lender harmless with respect thereto.
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/s/ MR
Borrower agrees to reimburse the lender upon demand for any and all costs and
expenses (including, without limit, court costs, legal expenses and reasonable
attorneys' fees, whether or not suit is instituted, and, if suit is instituted,
whether at the trial court level, appellate level, in a bankruptcy, probate or
administrative proceeding or otherwise) incurred in collecting or attempting to
collect this Note or incurred in any other matter or proceeding relating to this
Note (all of the foregoing collectively "Collection Costs").
Borrower hereby represents that the principal amount of the loan (including all
advances hereafter made hereunder) is a business loan, that the proceeds thereof
shall be used for business purposes only and that the same is exempt from
limitations upon lawful interest, pursuant to the terms of Section 205/4 of
Chapter 815 of the Illinois Compiled Statutes.
This Note may not be amended, modified or changed nor shall any waiver of any of
the provisions hereof be effective, except only by an instrument in writing,
signed by the party against whom enforcement of any waiver, amendment, change,
modification or discharge is sought.
To further secure the payment of this Note, Xxxxxxxx hereby irrevocably
authorizes any attorney of any court of record to appear for the Borrower in
such court in term, time or vacation, at any time hereafter and confess a
judgment without process against Xxxxxxxx, in favor of the holder of this Note
for such sums as may appear to be unpaid and owing thereon together with
interest, costs and attorneys' fees, and to waive and release all errors which
may intervene in such proceeding and consent to immediate execution upon such
judgment, hereby ratifying and confirming all that said attorney may do by
virtue hereof.
The provisions of this Note shall be binding upon Borrower, its successors and
assigns, and shall inure to the benefit of and extend to the Lender and any
holder hereof.
THIS NOTE HAS BEEN DELIVERED TO LENDER AND ACCEPTED BY LENDER IN THE STATE OF
ILLINO1S, IN WHICH STATE IT SHALL BE PERFORMED BY BORROWER. ALL ACTIONS ARISING
DIRECTLY OR INDIRECTLY AS A RESULT OR IN CONSEQUENCE OF THIS NOTE OR THE
FACTORING AGREEMENT SHALL, AT XXXXXX'S OPTION, BE INSTITUTED AND LITIGATED ONLY
IN COURTS HAVING SITUS IN COOK COUNTY, ILLINOIS, AND BORROWER HEREBY IRREVOCABLY
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
AND HAVING ITS SITUS IN COOK COUNTY, ILLINOIS. THIS NOTE SHALL, IN ALL RESPECTS,
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND NOT THE
CONFLICTS OF LAW PROVISIONS OF THE STATE OF ILLINOIS, INCLUDING ALL MATTERS OF
INTERPRETATION, ENFORCEMENT, CONSTRUCTION, VALIDITY, PERFORMANCE, USURY AND
EFFECT.
WAIVER OF JURY TRIAL: THE BORROWER ACKNOWLEDGES THAT THE RIGHT OF TRIAL BY JURY
IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED.
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/s/ MR
BORROWER, AFTER CONSULTING COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND
WITHOUT COERCION, WAIVES ALL RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES BETWEEN
THE BORROWER AND THE LENDER. THE LENDER SHALL NOT BE DEEMED TO HAVE GIVEN UP
THIS WAIVER OF JURY TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN INSTRUMENT
SIGNED BY THE LENDER.
BORROWER:
5TH AVENUE CHANNEL CORPORATION
By: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
Title: President
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