$100,000.00 Maturity Date: ___________, 20__ June ____, 2006
FOR VALUE RECEIVED, table 18, llc, a Massachusetts Limited Liability Company with an address of 316 Main Street, 6th Floor, Worcester, Massachusetts 01608 (the “Borrower”) promises to pay to NLJW, LLC with a place of business at 115 Winsor Road, Lancaster, Massachusetts 01523 (its successors, assigns and any future holder or holders of this instrument collectively, the “Lender”), or order, at the Lender’s place of business, the principal sum of One Hundred Thousand DOLLARS ($100,000.00), in lawful money of the United States of America in immediately available funds.
The unpaid principal of this Note from time to time outstanding shall bear interest, computed on the basis of the actual number of days elapsed over a year assumed to have 360 days, at a rate of six percent (10%) per annum.
If not sooner paid, the Borrower agrees to pay the unpaid principal balance and accrued interest on ________, 20__ (the “Maturity Date”). Prior to the occurrence of an Event of Default, no payment of principal or accrued interest shall be due prior to the Maturity Date. All payments received will be applied first to interest, then to fees and then to principal.
The Borrower may, at any time and without penalty, prepay any part or all of the unpaid principal balance of this Note in multiples of $1,000.
To the extent that any payment is due on a day which is not a Banking Day, an adjustment will be made so that the due date will be the first following Banking Day. A “Banking Day” means any day that commercial banks in Massachusetts are required or permitted by law to be open.
If the Lender demands payment of this Promissory Note, and the Borrower does not pay the Note within fifteen (15) days after the Lender’s demand, the Borrower will be charged either five percent (5.00%) of the unpaid principal plus accrued unpaid interest or $10.00, whichever is greater.
Upon default or after maturity or after judgment has been rendered on this Note, or in the Event of Default, the unpaid principal of all advances shall, at the option of the Lender, bear interest at a rate which is four (4) percentage points per annum greater than that which would otherwise be applicable.
The occurrence of any one or more of the following events is an Event of Default under this Note:
(a) Failure of the Borrower to pay, perform or observe any of her obligations contained in (i) this Note, except those relating to the payment of money, or (ii) any other document delivered to the Lender in connection with this Note, which failure continues for fifteen (15) days after notice of such failure from the Lender; or
(b) Failure of the Borrower to pay any money due under this Note within fifteen (15) days of the due date; or
(c) The termination of existence, for any reason including death, of the Borrower, or the involvement of the Borrower or any guarantor in any financial difficulties as evidenced by
(i) its insolvency within the meaning of the Massachusetts Uniform Commercial Code; or
(ii) an assignment for the benefit of its creditors; or
(iii) the appointment of a receiver, trustee, custodian, liquidator or conservator of it or its assets not vacated or set aside within sixty (60) days; or
(iv) the commencement by it of proceedings under any federal or state law relating to bankruptcy, insolvency or relief of debtors; or
(v) the commencement against it of proceedings under any federal or state law relating to bankruptcy, insolvency or relief of debtors if the proceedings are not dismissed within sixty (60) days after the date on which commenced.
If an Event of Default occurs the Lender may, to the extent permitted by law and without notice to the Borrower, declare the unpaid principal balance and accrued interest to be due immediately without notice, presentment, demand, protest or other notice of dishonor of any kind, all of which are expressly waived.
The Borrower shall reimburse the Lender for all reasonable attorneys’ fees (which may include, without limitation, the allocable cost of the Lender’s internal legal counsel), costs, and expenses incurred by the Lender in connection with the preparation of this Note, closing the transaction described in this Note and enforcing its rights with respect to this Note or any collateral securing this Note. No course of dealing by the Lender and no delay in exercising any right under this Note will operate as a waiver by the Lender of its rights, and a waiver of a right on one occasion may not be construed as a waiver of the right on a future occasion.
The Borrower hereby grants to the Lender a lien, a first priority perfected security interest and a right of setoff as security for all liabilities and obligations to the Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Lender or any entity under the control of the Lender, or in transit to any of them. At any time, without demand or notice, the Lender may set off the same or any part thereof and apply the same to any liability or obligation of the Borrower even though unmatured and regardless of the adequacy of any other collateral securing this Note. ANY AND ALL RIGHTS TO REQUIRE THE LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THIS NOTE, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. The Lender shall not be required to marshal any present or future security for the obligations or to resort to any such security in any particular order and the Borrower waives, to the fullest extent that they lawfully can, (a) any right it might have to require the Lender to pursue any particular remedy before proceeding against it and (b) any right to the benefit of, or to direct the application of the proceeds of any collateral until the obligations are paid in full.
The Borrower, endorsers or other persons now or hereafter liable for the payment of any of the indebtedness evidenced by this Note, severally agree, by making, guaranteeing or endorsing this Note or by making any agreement to pay any of the indebtedness evidenced by this Note, to waive presentment for payment, protest and demand, notice of protest, demand and of dishonor and nonpayment of this Note, and consent, on one or more occasions, without notice or further assent (a) to the substitution, exchange or release of the collateral securing this Note or any part thereof at any time, (b) to the acceptance or release by the holder or holders hereof at any time of any additional collateral or security for or other guarantors of this Note, (c) to the modification or amendment, at any time and from time to time, of this Note or any instrument securing this Note at the request of any person liable thereon, (d) to the granting by the holder hereof of any extension of the time for payment of this Note or for the performance of the agreements, covenants and conditions contained in this Note or any other instrument securing this Note, at the request of any person liable thereon, and (e) to any and all forbearances and indulgences whatsoever. Such consent shall not alter or diminish the liability of any person.
The Borrower shall not be obligated to pay and the Lender shall not collect interest at a rate higher than the maximum permitted by law or the maximum that will not subject the Lender to any civil or criminal penalties. If, because of the acceleration of maturity the payment of interest in advance or any other reason, the Borrower is required, under the provisions of any loan document, or otherwise, to pay interest at a rate in excess of such maximum rate, the rate of interest under such provisions shall immediately and automatically be reduced to such maximum rate and any payment made in excess of such maximum rate, together with interest thereon at the rate provided herein from the date of such payment, shall be immediately and automatically applied to the reduction of the unpaid principal balance of this Note as of the date on which such excess payment was made. If the amount to be so applied to reduction of the unpaid principal balance exceeds the unpaid principal balance, the amount of such excess shall be refunded by the Lender to the Borrower.
The Lender shall have the unrestricted right at any time or from time to time, and without the Borrower’s consent, to sell, assign, endorse, or transfer all or any portion of its rights and obligations hereunder to one or more banks or other entities (each, an “Assignee”) and, the Borrower agrees that it shall execute, or cause to be executed such documents including without limitation, amendments to this Note and to any other documents, instruments and agreements executed in connection herewith as the Lender shall deem necessary to effect the foregoing. In addition, at the request of the Lender and any such Assignee, the Borrower shall issue one or more new promissory notes, as applicable, to any such Assignee and, if the Lender has retained any of its rights and obligations hereunder following such assignment, to the Lender, which new promissory notes shall be issued in replacement of, but not in discharge of, the liability evidenced by the note held by the Lender prior to such assignment and shall reflect the amount of the respective commitments and loans held by such Assignee and the Lender after giving effect to such assignment. Upon the execution and delivery of appropriate assignment documentation, amendments and any other documentation required by the Lender in connection with such assignment, and the payment by Assignee of the purchase price agreed to by the Lender and such Assignee, such Assignee shall be a party to this Note and shall have all of the rights and obligations of the Lender hereunder (and under any and all other documents, instruments and agreements executed in connection herewith) to the extent that such rights and obligations have been assigned by the Lender pursuant to the assignment documentation between the Lender and Assignee, and the Lender shall be released from its obligations hereunder and thereunder to a corresponding extent.
The Lender shall have the unrestricted right at any time and from time to time, and without the consent of or notice to the Borrower, to grant to one or more institutions or other persons (each a “Participant”) participating interests in the Lender’s obligations to lend hereunder and/or any or all of the loans held by the Lender hereunder. In the event of any such grant by the Lender of a participating interest to a Participant, whether or not upon notice to the Borrower, the Lender shall remain responsible for the performance of its obligations hereunder and the Borrower shall continue to deal solely and directly with the Lender in connection with the Lender’s rights and obligations hereunder. The Lender may furnish any information concerning the Borrower in its possession from time to time to any prospective assignees and Participants, provided that the Lender shall require any such prospective assignee or Participant to maintain the confidentiality of such information.
Upon receipt of an affidavit of any officer of the Lender as to the loss, theft, destruction or mutilation of this Note or any other security document which is not of public record, and, in the case of any such loss, theft, destruction or mutilation, upon cancellation of this Note or other security document, the Borrower will issue, in lieu thereof, a replacement note or other security document in the same principal amount thereof and otherwise of like tenor.
The Borrower and the Lender mutually hereby knowingly, voluntarily and intentionally waive the right to a trial by jury in respect of any claim based hereon, arising out of, under or in connection with this NOTE or any other documents contemplated to be executed in connection herewith or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party. This waiver constitutes a material inducement for the Lender to accept this NOTE and make the Loan.
This Note is the joint and several obligation of the Borrower and all sureties, guarantors and endorsers, and is binding upon them and their respective heirs, successors and assigns.
Executed as a sealed instrument as of the ____ day of June, 2006.
TABLE 18, LLC