PROMISSORY NOTE
$900,000.00 August 20,1997
FOR VALUE RECEIVED, the undersigned, First Choice Auto Finance, Inc., a
Florida corporation (the "Maker"), hereby promises to pay to Jack Winters
Enterprises, Inc. d/b/a Motorcars of Stuart and Jack Winters, an individual, and
F. Craig Clements, an individual (the "Payees"), the principal sum of Nine
Hundred Thousand and 00/100 Dollars ($900,000.00) together with interest on the
outstanding balance hereunder accrued from the date hereof at the rate of ten
percent (10%) per annum. Payment of principal and interest shall be made on or
before one hundred eighty (180) days after the date hereof in lawful money of
the United States of America.
1. Segment of Total Closing. This Promissory Note is made in
conjunction with and as a part of payment pursuant to the "Asset Purchase
Agreement" dated December 19, 1996 and the "Addendum to Asset Purchase
Agreement" dated March 27, 1997 to which documents the parties hereto are
parties.
2. Prepayment. The Maker shall have the right to prepay, without premium or
penalty, at any time or times after the date hereof, all or any portion of the
outstanding principal balance of and/or accrued interest under this Note.
3. Events of Default. The following are Events of Default hereunder:
(a) Any failure by the Maker to pay when due all or any principal or
interest hereunder; or
(b) If the Maker (i) admits in writing its inability to pay generally its
debts as they mature, or (ii) makes a general assignment for the benefit of
creditors, or (iii) is adjudicated a bankrupt or insolvent, or (iv) files a
voluntary petition in bankruptcy, or (v) takes advantage, as against its
creditors, of any bankruptcy law or statute of the United States of America or
any state or subdivision thereof, now or hereafter in effect, or (vi) has a
petition or proceeding filed against it under any provision of any bankruptcy or
insolvency law or statute of the United States of America or any state or
subdivision thereof, which petition or proceeding is not dismissed within thirty
(30) days after the date of the commencement thereof, (vii) has a receiver,
liquidator, trustee, custodian, conservator, sequestrator or other such person
appointed by any court to take charge of its affairs or assets or business and
such appointment is not vacated or discharged within thirty (30) days
thereafter, or (viii) takes any action in furtherance of any of the foregoing;
or
(c) Any liquidation, dissolution or winding up of the Maker or its
business.
4. Remedies on Default. If any Event or Default shall occur and be
continuing, the holder hereof shall, in addition to any and all other available
rights and remedies, have the right, at its option (except for an Event of
Default under paragraph 3(b) above, the occurrence of which shall automatically
effect acceleration hereunder), (a) to declare the entire unpaid principal
balance of this Note, together with all accrued interest hereunder, to be
immediately due and payable, and (b) to pursue any and all available remedies
for the collection of such principal and interest.
5. Certain Waivers. Except as otherwise expressly provided in this Note,
the maker hereby waives diligence, demand, presentment for payment, protest,
dishonor, nonpayment, default, and notice of any and all of the foregoing. All
amounts payable under this Note shall be payable without relief under any
applicable valuation and appraisement laws. The Maker hereby expressly agrees
that this Note, or any payment hereunder, may be extended, modified or
subordinated (by forbearance or otherwise) from time to time, without in any way
affecting the liability of the Maker.
6. Waivers and Amendments. Neither any provision of this Note nor any
performance hereunder may be amended or waived orally, but only by an agreement
in writing and signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
7. Cumulative Remedies. No right or remedy conferred upon the Payees under
this Note is intended to be exclusive of any other right or remedy contained
herein or in any instrument or document delivered in connection herewith, and
every such right or remedy shall be cumulative and shall be in addition to every
other such right or remedy contained herein and/or now or hereafter existing at
law or in equity or otherwise.
8. Governing Law: Consent to Jurisdiction: Waiver of Jury Trial: Time of
the Essence. This Note shall be deemed to be a contract made under the laws of
the State of Florida and shall be governed by, and construed in accordance with,
the laws of the State of Florida. The maker hereby irrevocably consents to the
jurisdiction of all courts (state and federal) sitting in the State of Florida
in connection with any claim, action or proceeding relating to or for the
collection or enforcement of this Note, and hereby waives any defense of forum
non conveniens or other such claim or defense in respect of the lodging of any
such claim, action or proceeding in any such court.
9. Collection Costs. In the event that it is necessary for either party to
retain the services of an attorney pursuant to any provisions of this Promissory
Note, the non-prevailing party shall pay to the prevailing party all costs and
expenses incurred by the prevailing party including reasonable attorney fees and
expenses.
FIRST CHOICE AUTO FINANCE, INC.
By: /s/ Gary R. Smith