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Exhibit 10.9
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO FALCON ENTERTAINMENT
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
SECURED PROMISSORY NOTE
$700,000 October 3, 2000
FOR VALUE RECEIVED, subject to the terms and conditions set forth below,
Falcon Entertainment Corp., a Delaware corporation (the "COMPANY" or the
"MAKER"), hereby promises to pay to the order of JAMES FALLACARO or CORINNE
FALLACARO (each, a "HOLDER") on demand (the "MATURITY DATE"), the principal
amount of SEVEN HUNDRED THOUSAND DOLLARS ($700,000) (the "NOTE") plus all
accrued interest in arrears from and including the date hereof on the principal
balance from time to time outstanding, compounded daily, at a rate per annum
equal to ten percent (10%). This Note may be prepaid in whole or in part, at any
time or from time to time, without premium or penalty. Interest shall be
calculated on the basis of actual number of days elapsed over a year of 365
days. Notwithstanding any other provision of this Note to the contrary, neither
Holder intends to charge and the Company shall not be required to pay any
interest or other fees or charges in excess of the maximum permitted by
applicable law; any payments in excess of such maximum shall be refunded to the
Company or credited to reduce principal hereunder. All payments received by any
Holder hereunder will be applied first to costs of collection, if any, then to
interest and the balance to principal.
The payment of principal and interest will be made by check, wire
transfer, or such other means as either Holder shall agree, in immediately
available United States funds sent to a Holder at the address furnished to the
Company for that purpose.
This Note will be registered on the books of the Company or its agent
as to principal and interest. Any transfer of this Note will be effected only by
surrender of this Note to the Company and reissuance of a new note to the
transferee.
Payment of this Note is secured by a security interest in all assets of
the Maker and each of its affiliates and subsidiaries pursuant to a Security
Agreement of even date herewith between the Maker and the Holders.
1. EVENTS OF DEFAULT. The outstanding principal and accrued interest on
this Note shall, at the option of either Holder hereof, become due and payable
without notice or demand, upon the happening of any one of the following
specified events:
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(a) failure to pay any amount as herein set forth;
(b) default in the performance by the Company of any other obligation
to either Holder, which default is not cured within thirty (30) days after
written notice of such default from either Holder;
(c) insolvency (however evidenced) or the commission of any act of
insolvency;
(d) the making of a general assignment for the benefit of creditors;
(e) the filing of any petition or the commencement of any proceeding by
the Company or any endorser or guarantor of this Note for any relief under any
bankruptcy or insolvency laws, or any laws relating to the relief of debtors,
readjustment of indebtedness, reorganizations, compositions, or extensions;
(f) the filing of any petition or the commencement of any proceeding
against the Company or any endorser or guarantor of this Note for any relief
under any bankruptcy or insolvency laws, or any laws relating to the relief of
debtors, readjustment of indebtedness, reorganizations, compositions, or
extensions, which proceeding is not dismissed within sixty (60) days;
(g) suspension of the transaction of the usual business of the Company;
(h) the past or future making of a false representation or warranty by
the Company in connection with this Note; or
(i) any acquisition of the Company, whether by merger, sale of assets
or other transaction without first providing the Holders at least 10 calendar
days prior written notice.
2. EXPENSES OF COLLECTION. The Company agrees to pay the Holders'
reasonable costs in collecting and enforcing this Note, including reasonable
attorney's fees.
3. WAIVER OR AMENDMENT. No waiver of any obligation of the Company
under this Note or any amendment to this Note shall be effective without the
written consent of either Holder hereof. A waiver by either Holder of any right
or remedy under this Note on any occasion shall not be a bar to exercise of the
same right or remedy on any subsequent occasion or of any other right or remedy
at any time.
4. NOTICE. Any notice required or permitted under this Note shall be in
writing and shall be deemed to have been given on the date of delivery, if
personally delivered to the party to whom notice is to be given, or on the fifth
business day after mailing, if mailed to the party to whom notice is to be
given, by certified mail, return receipt requested, postage prepaid, and
addressed as follows:
If to the Company, at
Falcon Entertainment Corp.
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675 Third Avenue, 12th Floor
New York, NY 10017
Attn: Anthony Escamilla
If to either Holder, at
71 Great Pasture Road
Redding, CT 06896
or, in each case, to the most recent address, specified by written notice, given
to the sender pursuant to this Section 5.
5. WAIVER BY COMPANY. The Company hereby expressly waives presentment,
demand, and protest, notice of demand, dishonor and nonpayment of this Note, and
all other notices or demands of any kind in connection with the delivery,
acceptance, performance, default or enforcement hereof, and hereby consents to
any delays, extensions of time, renewals, waivers or modifications that may be
granted or consented to by either Holder hereof with respect to the time of
payment or any other provision hereof.
6. SEVERABILITY. In the event any one or more of the provisions of this
Note shall for any reason be held to be invalid, illegal or unenforceable, in
whole or in part or in any respect, or in the event that any one or more of the
provisions of this Note operate or would prospectively operate to invalidate
this Note, then and in any such event, such provision(s) only shall be deemed
null and void and shall not affect any other provision of this Note and the
remaining provisions of this Note shall remain operative and in full force and
effect and in no way shall be affected, prejudiced, or disturbed thereby.
7. GOVERNING LAW. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
FALCON ENTERTAINMENT CORP.
By: /S/ ANTHONY ESCAMILLA
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Anthony Escamilla
Executive Vice President
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