Promissory Note from DPMG, Inc. to Newco XXV, Inc in the amount of $400,000.00 dated March 30, 2009
EX-10.5 6 ex10-5.htm EXHIBIT 10.5 NEWCO NOTE 03-2009 ex10-5.htm
Exhibit 10.5
PROMISSORY NOTE
$400,000.00 March 30, 2009
FOR VALUE RECEIVED, the undersigned, DPMG INC., a Delaware corporation (the “Maker”), hereby promises to pay to the order of NEWCO XXV, INC., a Delaware corporation (“Payee”), at its offices at 2817 Crain Highway, Upper Marlboro, Maryland 20074 in lawful money of the United States of America, the principal sum of Four Hundred Thousand and No/100 Dollars ($400,000.00), together with interest on the principal as herein specified.
As used in this Note, the following terms shall have the respective meanings indicated below:
| | “Affiliate” shall mean any person or entity which controls, is controlled by or is under common control with the Maker. For purposes of this Note, control means the power to direct, or cause the direction of the management of any person or entity. |
| | “Loan Interest Rate” means 10% per annum, compounded annually. |
| | “Maturity Date” means November 1, 2010. |
| | “Maximum Rate” means the maximum rate of non-usurious interest permitted by applicable law and calculated after taking into account any and all relevant fees, payments, and other charges in respect of this Note which are deemed to be interest under applicable law. |
The principal hereof shall bear interest at a rate per annum which shall be equal to the lesser of (a) the Maximum Rate, or (b) the Loan Interest Rate. All payments made pursuant to this Note shall be applied to the payment of any costs and expenses of any holder due such holder hereunder, then to accrued interest, to the extent such exists, and then to the payment of principal.
All principal and accrued interest and other amounts due hereunder shall be paid in full on or prior to the Maturity Date. The Note may be prepaid in whole or in part, without penalty, and such prepayment shall be allocated and applied as set forth in the immediately preceding paragraph.
Notwithstanding anything to the contrary contained herein, no provisions of this Note shall require the payment or permit the collection of interest in excess of the Maximum Rate. If any excess of interest in such respect is herein provided for, or shall be adjudicated to be so provided, in this Note or otherwise in connection with this loan transaction, the provisions of this paragraph shall govern and prevail, and neither Maker nor the sureties, guarantors, successors or assigns of Maker shall be obligated to pay the excess amount of such interest, or any other excess sum paid for the use, forbearance or detention of sums loaned pursuant hereto. If, for any reason, interest in excess of the Maximum Rate shall be deemed charged, required or permitted by any court of competent jurisdiction, any such excess shall be applied as a payment and reduction of the principal of indebtedness evidenced by this Note; and, if the principal amount hereof has been paid in full, any remaining excess shall forthwith be paid to Maker. In determining whether or not the interest paid or payable exceeds the Maximum Rate, Maker and Payee shall, to the extent permitted by applicable law, (i) characterize any non-principal payment as an expense, fee, or premium rather than as interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the entire contemplated term of the indebtedness evidenced by this Note, so that the interest for the entire term does not exceed the Maximum Rate.
An Event of Default shall be (1) a default in the payment of any payment of principal or interest or other costs or expenses when due hereunder and the failure to cure same within ten (10) days after written notice from Payee, (2) Maker shall admit in writing its inability to, pay its debts as such debts become due, or (3) the filing by or against Maker of any petition or similar instrument for the commencement of any proceeding under any bankruptcy, reorganization, insolvency or liquidation law of any jurisdiction and the failure by Maker to have same dismissed within 45 days after such filing.
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Upon the occurrence of any Event of Default: A) the holder hereof may, at its option, declare the entire unpaid principal and, to the extent such exists, accrued interest due under this Note immediately due and payable without additional notice, demand or presentment, all of which are hereby waived, and upon such declaration, the same shall become and shall be immediately due and payable; and B) the principal, and to the extent such exists, any interest due hereunder, shall bear interest at the Maximum Rate (not to exceed 18% per annum) until such Event of Default is cured. Failure of the holder hereof to exercise this option shall not constitute a waiver of the right to exercise the same upon the occurrence of a subsequent Event of Default.
In the event (i) the holder hereof expends any effort in any attempt to enforce payment of all or any part of any sum due the holder hereunder whether or not suit is brought, (ii) this Note is placed in the hands of an attorney for collection whether or not suit is brought, or an attorney is used by a holder hereof in any bankruptcy proceeding of Maker or its Affiliates, or (iii) this Note is collected through any legal proceedings, Maker agrees to pay all collection costs and fees actually incurred by the holder, including reasonable attorney’s fees, within ten (10) days after written demand is made therefor by the then holder.
The remedies of the holder hereof, as provided herein: 1) are cumulative and concurrent, 2) are in addition to those remedies available under applicable law, 3) may be pursued singularly, successively or together, at the sole discretion of the holder hereof, and 4) may be exercised as often as occasion therefor shall arise. No act of, omission or commission of the holder, including, but not limited to, any failure to exercise any right, remedy or recourse, shall be deemed to be a waiver or release of the same, such waiver or release to be effected only through a written document executed by the holder hereof and then only to the extent specifically recited therein. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of any subsequent right, remedy or recourse as to a subsequent event.
This Note shall be governed by and construed in accordance with the laws of the State of Maryland and the applicable laws of the United States of America.
Maker and each surety, guarantor, endorser, and other party ever liable for payment of any sums of money payable on this Note jointly and severally waive notice, presentment, demand for payment, protest, notice of protest and non-payment or dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, diligence in collecting, grace, and all other formalities of any kind, and consent to all extensions, renewals, and modifications without notice for any period or periods of time and partial payments, before or after maturity, without prejudice to the holder. The holder shall similarly have the right to deal in any way, at any time, with one or more of the foregoing parties without notice to any other party, and to grant any such party any extensions of time for payment of any of said indebtedness, or to release part or all of any collateral securing this Note, or to grant any other indulgences or forbearances whatsoever, without notice to any party and without in any way affecting the liability of Maker hereunder.
This Note shall be binding upon the Maker, any surety and/or guarantor hereunder, and their heirs, legal representatives, successors and assigns respectively and the terms hereof shall inure to the benefit of the holder, its heirs, legal representatives, successors and assigns. This Note may not be amended, modified or supplemented except by an instrument in writing signed by the Maker and the then holder. The Maker shall not assign any of its rights or obligations under this Note without the prior consent of the then holder. The Payee may at any time and from time to time, without the consent of the Maker, assign all or any portion of its rights under this Note to one or more persons. The Payee shall be entitled to have this Note subdivided, by exchange of this Note for Notes of lesser denominations or otherwise, to the extent necessary to reflect any such assignment or assignments.
| MAKER: | |
| DPMG, INC., a Delaware Corporation | |
| By: | /s/ William W. Vaughan, III |
| Name: | William W. Vaughan, III |
| Title: | Vice President |
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