Exhibit 10.3
NOTE
$849,341 November 15, 2005
For value received, TRACKPOWER, INC, a Wyoming corporation, having an
office at 67 Wall Street, New York, NY 10005 ("Maker") promises to pay to the
order of SOUTHERN TIER ACQUISITIONS, LLC, having an office at 125 Park Avenue,
New York, New York 10017 ("Payee"), or at such other place as may be designated
in writing by the holder of this Note, the principal sum of Eight Hundred Forty
Nine Thousand Three Hundred Forty One Dollars ($849,341). The entire principal
amount shall be due and payable on December 31, 2005.
AND IT IS EXPRESSLY AGREED AS FOLLOWS:
1. This Note is secured by a Pledge Agreement of even date herewith made
by Maker and given to Payee, covering all of Maker's membership interests in
American Racing and Entertainment, LLC, a New York limited liability company,
(the "Pledge Agreement"), the agreements, covenants and conditions of which are
made a part hereof to the same extent and with the same force and effect as if
fully set forth herein, and Maker covenants and agrees to keep and perform them,
or cause them to be kept and performed.
2. The principal sum evidenced by this Note, together with any other sums
due hereunder or under the Pledge Agreement shall become due, at the option of
Payee, on the happening of any default in complying with the terms of this Note,
or on the happening of any event of default under the Pledge Agreement. Failure
to exercise such option shall not constitute a waiver of the right to exercise
same in the event of any subsequent default.
3. This Note may not be changed 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.
4. The remedies of the holder hereof as provided herein or in the Pledge
Agreement shall be cumulative and concurrent, and may be pursued singly,
successively, or together at the sole discretion of the holder hereof, and may
be exercised as often as occasion therefore shall occur, and the failure to
exercise any such right or remedy shall in no event be construed as a waiver or
release thereof.
5. Maker hereby waives and releases all errors, defects and imperfections
in any proceedings instituted by the holder hereof under the terms of this Note,
or of the Pledge Agreement, as well as all benefits which may accrue to Maker by
virtue of any present or future laws exempting the Pledge Agreement property, or
any other property, real or personal, or any part of the proceeds arising from
any sale of any such property, from attachment, levy or sale under execution, or
providing for any stay of execution to be issued on any judgment recovered on
this Note or in any action to enforce the Pledge agreement, exemption from civil
process, or extension of time for payment.
6. Maker hereby waives presentment for payment, demand, notice of demand,
notice of nonpayment or dishonor, protest and notice of protest of this Note,
and all other notices in connection with the delivery, acceptance, performance,
default, or enforcement of the payment of this Note, and agrees that Maker's
liability shall not be affected in any manner by any indulgence, extension of
time, renewal, waiver or modification granted or consented to by the holder
hereof. Maker consents to any and all extensions of time, renewals, waivers, or
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modifications that may be granted by holder hereof with respect to the payment
or other provisions of this Note, and to the release of all collateral or any
part thereof, with or without substitution.
7. Payee shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by the holder hereof, and then only to the extent
specifically set forth in the writing. A waiver of one event shall not be
constructed as continuing or as a bar to or waiver of any right or remedy to a
subsequent event.
8. Any notice, demand, request or other communication which Maker or the
holder of this Note desires to give to the other hereunder shall be deemed
sufficient if in writing and mailed by certified mail, return receipt requested,
postage prepaid in the United States, addressed to the address hereinabove set
forth or to such other address as either party may hereafter designate in
writing, and shall be deemed given when mailed.
9. If any provision of this Note is held to be invalid or unenforceable by
a court of competent jurisdiction, the other provisions of this Note shall
remain in full force and effect and shall be liberally construed in favor of the
holder hereof in order to effect the provisions of this Note.
10. THIS NOTE WILL BE GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER ARISING OUT OF OR RELATED TO THIS NOTE, THE MAKER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
IN NEW YORK COUNTY IN THE STATE OF NEW YORK AND AGREES NOT TO RAISE ANY
OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF
ANY SUCH PROCEEDING IN SUCH COUNTY. THE MAKER AGREES THAT SERVICE OF PROCESS IN
ANY SUCH PROCEEDING MAY BE DULY EFFECTED BY MAILING A COPY THEREOF TO THE MAKER
BY NATIONALLY RECOGNIZED OVERNIGHT COURIER WITH NO RECEIPT REQUIRED.
11. MAKER HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF OR
RELATED TO THIS NOTE. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PAYEE.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the
day and year first above written.
TRACKPOWER, INC.
By:
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Edward M. Tracy, President
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State of New York ) ss.:
County of )
On the ______ day of November in the year 2005 before me, the undersigned,
personally appeared Edward M. Tracy, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her/their capacity(ies) and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
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(Signature and office of individual taking acknowledged)
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