EXHIBIT 10.7
PROMISSORY NOTE
$7,000.00 Phoenix, Arizona
July 21, 2004
1. FUNDAMENTAL PROVISIONS.
The following terms will be used as defined terms in this Note:
Payee and Holder: E. James Wexler
Maker: Fenton Graham Marketing, Inc.
Principal Amount: Seven Thousand Dollars ($7,000.00)
Interest Accrual Date: July 21, 2004
Interest Rate: Nine percent (9%) per annum
Default Interest Rate: Fifteen percent (15%) per annum
Maturity Date: July 20, 2006
Business Day: Any day of the year other than Saturdays, Sundays, or
legal holidays.
Loan Documents: The Note and any other documents executed in
connection with the Loan.
Loan: The loan from Payee to Maker in the Principal Amount
and evidenced by this Note.
2. PROMISE TO PAY.
For value received, Maker, promises to pay to the order of Holder, at the office
of Payee at 11711 E. Wethersfield Dr., Scottsdale, AZ 85259 or at such other
place as the Holder hereof may from time to time designate in writing, the
Principal Amount of Seven Thousand Dollars ($7,000.00)
3. INTEREST; PAYMENTS.
(a) Absent an Event of Default hereunder or under any of the Loan Documents, the
interest on this Note shall be 9%. Any future advances or unpaid balances beyond
the maturity date shall bear interest at the Default Interest Rate stated.
Throughout the term of this Note, interest shall be calculated on a 360-day year
with respect to the unpaid balance of the Principal Amount beyond the maturity
date and, in all cases, shall be computed for the actual number of days in the
period for which interest is charged, which period shall consist of 360 days on
an annual basis.
(b) All payments due hereunder shall be made (i) without deduction of any
present and future taxes, levies, imposts, deductions, charges or withholdings,
which amounts shall be paid by Maker, and (ii) without any other set off. Maker
will pay the amounts necessary such that the
gross amount of the principal and interest received by the Holder hereof is not
less than that required by this Note.
(c) The Note shall be repaid in full July 20, 2006 (the "Balloon Payment").
Interest shall be paid in full at the time of the balloon payment. The Balloon
Payment shall consist of repayment of the Principal in full ($7,000.00) plus the
interest payment of $1,260.00 for a total final payment of $8,260.00.
(d) If any payment to be made by maker hereunder shall become due on a day which
is not a Business Day, such payment shall be made on the next succeeding
Business Day.
4. PREPAYMENT. Maker shall have the right to prepay the Principal Amount, or any
portion thereof, without premium or penalty, provided that Maker shall provide
the Holder with at least five (5) days prior written notice of Maker's intent to
make any prepayment.
5. LAWFUL MONEY. Principal and interest are payable in lawful money of the
United States of America.
6. APPLICATION OF PAYMENTS/LATE CHARGE.
(a) Absent the occurrence of an Event of Default hereunder or under any of the
other Loan Documents, any payments received by the Holder hereof pursuant to the
terms hereof shall be applied first to sums, other than principal and interest,
due the Holder hereof pursuant to the Loan Documents, next to the payment of all
interest accrued to the date of such payment, and the balance, if any, to the
payment of principal. Any payments received by the Holder hereof after the
occurrence of an Event of Default hereunder or under any of the Loan Documents,
shall be applied to the amounts specified in this Paragraph 6 (a) in such order
as the Holder hereof may, in its sole discretion, elect.
(b) If any payment of interest and/or principal is not received by the Holder
hereof when such payment is due, then (i) a late charge of five percent (5%) of
the amount of the installment due and unpaid will be added to the delinquent
amount to compensate the Holder hereof for the expense of handling the
delinquency for any payment past due in excess of ten (10) days, regardless of
any notice and cure periods, and (ii) the amount due and unpaid (including,
without limitation, the late charge) shall bear interest at the Default Interest
Rate, computed from the date on which the amount was due and payable until paid.
7. SECURITY. Not Applicable.
8. EVENT OF DEFAULT. The occurrence of any of the following shall be deemed to
be an event of default (Event of Default) hereunder:
(a) default in the payment of principal or interest when due; or
(b) the occurrence of an Event of Default under any of the Loan Documents,
including but not limited to this Note.
9. REMEDIES. Upon the occurrence of an Event of Default, then at the option of
the Holder hereof:
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(a) the entire balance of principal together with all accrued interest thereon,
and all other amounts payable by Maker under the Loan Documents shall, without
demand or notice, immediately become due and payable. Upon the occurrence of an
Event of Default, (and so long as such Event of Default shall continue), the
entire balance of principal hereof, together with all accrued interest thereon,
all other amounts due under the Loan Documents, and any judgment for such
principal, interest, and other amounts shall bear interest at the Default
Interest Rate from the date of the last interest payment, subject to the
limitations contained in Paragraph 14 hereof. No delay or omission on the part
of the Holder hereof in exercising any right under this Note or under any of the
other Loan Documents hereof shall operate as a waiver of such right.
10. WAIVER. Maker, endorsers, guarantors, and sureties of this Note hereby waive
diligence, demand for payment, presentment for payment, protest, notice of
nonpayment, notice of protest, notice of non payment, notice of intent to
accelerate, notice of acceleration, notice of dishonor, any notice of
nonpayment, and all other notices or demands of any kind (except notices
specifically provided for in the Loan Documents) and expressly agree that,
without in any way affecting the liability of Maker, endorsers, guarantors, or
sureties, the Holder hereof may extend any maturity date or the time for payment
of any installment due hereunder, otherwise modify the Loan Documents, accept
additional security, release any person liable, and release any security or
guaranty. Maker, endorsers, guarantors, and sureties waive, to the full extent
permitted by law, the right to plead any and all statutes of limitations as a
defense.
11. CHANGE, DISCHARGE, TERMINATION, OR WAIVER. No provision of this Note may be
changed, discharged, terminated, or waived except in writing signed by the party
against whom enforcement of the change, discharge, termination or waiver is
sought. No failure on the part of the Holder hereof to exercise and no delay by
the Holder hereof in exercising any right or remedy under this Note or under the
law shall operate as a waiver thereof.
12. ATTORNEYS' FEES. If this Note is not paid when due or if any Event of
Default occurs, Maker promises to pay all costs of enforcement and collection
and preparation therefor, including but not limited to, reasonable attorneys'
fees, whether or not any action or proceeding is brought to enforce the
provisions hereof (including, without limitation, all such costs incurred in
connection with any bankruptcy, receivership, or other court proceedings
(whether at the trial or appellate level).
13. SEVERABILITY. If any provision of this Note is unenforceable, the
enforceability of the other provisions shall not be affected and they shall
remain in full force and effect.
14. INTEREST RATE LIMITATION. Maker hereby agrees to pay an effective rate of
interest that is the sum of the interest rate provided for herein, together with
any additional rate of interest resulting from any other charges of interest or
in the nature of interest paid or to be paid in connection with the Loan,
including, without limitation, any fees to be paid by maker pursuant to the
provisions of the Loan Documents. Holder and Maker agree that none of the terms
and provisions contained herein or in any of the Loan Documents shall be
construed to create a contract for the use, forbearance or detention of money
requiring payment of interest at a rate in excess of the maximum interest rate
permitted to be charged by the laws of the State of Arizona. In such event, if
any Holder of this Note shall collect monies which are deemed to constitute
interest which would otherwise increase the effective interest rate on this Note
to a rate in excess of the maximum rate permitted to be charged by the laws of
the State of Arizona, all such sums deemed to constitute interest in excess of
such maximum rate shall, at the option of the Holder, be credited to the payment
of other amounts payable under the Loan Documents or returned to Maker.
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15. NUMBER AND GENDER. In this Note the singular shall include the plural and
the masculine shall include the feminine and neuter gender, and vice versa.
16. HEADINGS. Headings at the beginning of each numbered section of this Note
are intended solely for convenience and are not part of this Note.
17. CHOICE OF LAW. This Note shall be governed by and construed in accordance
with the laws of the State of Arizona without giving effect to conflict of laws
principles. Exclusive jurisdiction on all litigation will be in the Superior
Court of Maricopa County, Arizona.
18. INTEGRATION. The Loan Documents contain the complete understanding and
agreement of the Holder hereof and Maker and supersede all prior
representations, warranties, agreements, arrangements, understandings, and
negotiations.
19. BINDING EFFECT. The Loan Documents will be binding upon, and inure to the
benefit of the Holder hereof, Maker, and their respective successors and
assigns. Maker may not delegate its obligations under the Loan Documents.
20. TIME IS OF THE ESSENCE. Time is of the essence with regard to each provision
of the Loan Documents as to which time is a factor.
21. SURVIVAL. The representations, warranties, and covenants of the Maker in the
Loan Documents shall survive the execution and delivery of the Loan Documents
and the making of the Loan.
22. WAIVER OF JURY TRIAL. MAKER HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS NOTE
OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT, OR AGREEMENT DELIVERED (OR WHICH
MAY IN THE FUTURE BE DELIVERED) IN CONNECTION HEREWITH OR ARISING FROM ANY
LENDING RELATIONSHIP EXISTING IN CONNECTION WITH THIS NOTE. MAKER AGREES THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE THE COURT AND NOT BEFORE A
JURY.
MAKER
Fenton Graham Marketing, Inc.
/s/ J.P. Schrage
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