Attached files
| file | filename |
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| 8-K - Willing Holding, Inc. | v170428_8k.htm |
PROMISSORY
NOTE
Dated: December
17, 2009
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1.
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Principal / Borrower
Promise to Pay
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FOR VALUE RECEIVED, the
undersigned, Willing Holding, Inc., a Florida corporation whose address is 3
Centerview Drive, Suite 240, Greensboro, North Carolina 27407 (“Borrower”),
promises to pay to Thomas L. DiStefano III, the Borrowers Chairman and CEO
(“Lender”), whose address is 2910 NW 26th Ave.,
Boca Raton, FL 33434, the principal sum of $30,000.00. All sums owing
under this Note are payable in lawful money of the United States of
America.
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2.
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Interest
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There shall be no Interest accrued on
this Note.
All amounts required to be paid under
Lender’s Note shall be payable at Lender’s office located at 2910 NW 26th Ave.,
Boca Raton, FL 33434, or at another place as Lender, from time to time, may
designate in writing.
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3.
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Payment of
Principal
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The entire unpaid principal balance,
together with all accrued interest shall be due and payable in full on the
Maturity Date (as defined hereunder).
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4.
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Maturity
Date
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The entire principal balance of this
Note, together with all accrued and unpaid interest and fees, shall be due and
payable on or before February 15, 2010 (“Maturity Date”), unless otherwise
prepaid in accordance with the terms of this Note.
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5.
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Additional
Consideration.
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None
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6.
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Prepayment; Subsequent
Financing.
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Borrower may prepay the whole or any
portion of this Note on any date, upon notice to Lender. Lender shall
be entitled to receive repayment in full of Borrower’s obligations hereunder out
of any funds of Borrower within five (5) days of the closing of any subsequent
financing of Borrower (whether completed as a debt or equity
financing).
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7.
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Late
Charge
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If any required payment, including the
final payment due on the maturity date, is not paid within 15 days from and
including the date upon which it was due (whether by acceleration or otherwise),
then, in each such event, all past due amounts shall be subject to a late
penalty of five (.05) cents on every dollar owed (the “late
penalty”). This late penalty shall be in addition to any other
interest due as provided for in Paragraph 2 and in addition to all other rights
and remedies provided herein or by law for the benefit of the holder on a
default. The acceptance of any payment by the holder of the Note
shall not act to restrict the holder at all in exercising any other rights under
the Note or the law, to waive or release Borrower from any obligations contained
herein, or to extend the time for payments due under this Note.
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8.
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Default and
Remedies
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If Borrower fails to pay principal on
the date on which it falls due or to perform any of the agreements, conditions,
covenants, provisions, or stipulations contained in this Note, then Lender, at
its option and without notice to Borrower, may declare immediately due and
payable the entire unpaid balance of principal with interest from the date of
default at the rate of 12% per year and all other sums due by Borrower hereunder
anything herein to the contrary notwithstanding. Payment of this sum
may be enforced and recovered in whole or in part at any time by one or more of
the remedies provided to Lender in this Note. In that case, Lender
also may recover all costs in connection with suit, a reasonable attorney’s fee
for collection, and interest on any judgment obtained by Lender at the rate of
12% per year.
The remedies of Lender and the warrants
provided in this Note shall be cumulative and concurrent, and they may be
pursued singly, successively, or together at the sole discretion of
Lender. They may be exercised as often as occasion shall occur, and
failing to exercise one shall in no event be construed as a waiver or release of
it.
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9.
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Attorneys’ Fees and
Costs
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Borrower shall pay all attorneys fees
in connection with the preparation of this Note.
If Lender engages any attorney to
enforce or construe any provision of this Note, or as a consequence of any
default whether or not any legal action is filed, Borrower immediately shall pay
on demand all reasonable attorneys’ fees and other Lender’s costs, together with
interest from the date of demand until paid at the highest rate of interest then
applicable to the unpaid principal, as if the unpaid attorneys’ fees and costs
had been added to the principal.
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10.
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Waivers
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(a) Borrower
hereby waives and releases all benefit that might accrue to Borrower by virtue
of any present or future laws of exemption with regard to real or personal
property or any part of the proceeds arising from any sale of that property,
from attachment, levy, or sale under execution, or providing for any stay of
execution, exemption from civil process, or extension of time for
payment. Borrower agrees that any real estate that may be levied on
under a judgment obtained by virtue hereof, on any writ of execution issued
thereon, may be sold on any writ in whole or in part in any order desired by
Lender.
(b) Borrower
and all endorsers, sureties, and guarantors jointly and severally waive
presentment for payment, demand, notice of demand, notice of nonpayment or
dishonor, protest, 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. They agree that each shall have
unconditional liability without regard to the liability of any other party and
that they shall not be affected in any manner by any indulgence, extension of
time, renewal, waiver, or modification granted or consented to by
Lender. Borrower and all endorsers, sureties, and guarantors consent
to any and all extensions of time, renewals, waivers, or modifications that may
be granted by Lender with respect to the payment or other provisions of this
Note, and to the release of any collateral or any part thereof, with or without
substitution, and they agree that additional borrowers, endorsers, guarantors,
or sureties may become parties hereto without notice to them or affecting their
liability hereunder.
(c) Lender
shall not be considered 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 Lender, and then only to the extent specifically set forth in
writing. A waiver on one event shall not be construed as continuing
or as a bar to or waiver of any right or remedy to a subsequent
event.
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11.
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Release.
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Lender hereby remises, releases, and
forever discharges the Borrower, its affiliates, subsidiaries, officers,
directors, employees and agents of and from all, and all manner of, actions,
causes of action, suits, proceedings, debts, dues, contracts, judgments,
damages, claims, and demands whatsoever in law or equity, which the Lender ever
had, now has, or which its successors or assigns, hereafter can, shall, or may
have for or by reason of any matter, cause, or thing whatsoever, arising from
the Lender’s participation as either a lender or shareholder of
Borrower prior to the date hereof.
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12.
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Notices
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All notices required under or in
connection with this Note shall be delivered or sent by certified or registered
mail, return receipt requested, postage prepaid, to the addresses set forth in
Paragraph 1 hereof, or to another address that any party may designate from time
to time by notice to the others in the manner set forth herein. All
notices shall be considered to have been given or made either at the time of
delivery thereof to an officer or employee or on the third business day
following the time of mailing in the aforesaid manner.
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13.
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Costs and
Expenses
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Borrower shall pay the cost of any
revenue tax or other stamps now or hereafter required by law at any time to be
affixed to this Note.
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14.
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No Partnership or
Joint Venture
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Nothing contained in this Note or
elsewhere shall be construed as creating a partnership or joint venture between
Lender and Borrower or between Lender and any other person or as causing the
holder of the Note to be responsible in any way for the debts or obligations of
Borrower or any other person.
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15.
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Interest Rate
Limitation
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Notwithstanding anything contained
herein to the contrary, the holder hereof shall never be entitled to collect or
apply as interest on this obligation any amount in excess of the maximum rate of
interest permitted to be charged by applicable law. If the holder of
this Note ever collects or applies as interest any such excess, the excess
amount shall be applied to reduce the principal debt; and if the principal debt
is paid in full, any remaining excess shall be paid forthwith to Borrower. In
determining whether the interest paid or payable in any specific case exceeds
the highest lawful rate, the holder and Borrower shall to the maximum extent
permitted under applicable law (a) characterize any non-principal payment as an
expense, fee, or premium rather than as interest; (b) exclude voluntary
prepayments and the effects of these; and (c) spread the total amount of
interest throughout the entire contemplated term of the obligation so that the
interest rate is uniform throughout the term. Nothing in this
paragraph shall be considered to increase the total dollar amount of interest
payable under this Note.
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16.
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Obligations of the
Persons Under this Note
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If more than one person signs this
Note, each person is fully and personally obligated to keep all of the promises
made in this Note, including the promise to pay the full amount
owed. Any person who is a guarantor, surety or endorser of this Note
is also obligated to do these things. Any person who takes over these
obligations, including the obligations of a guarantor, surety or endorser of
this Note is also obligated to keep all of the promises made in this
Note. The Note Holder may enforce its rights under this Note against
each person individually or against all of us together. This means
that any one of us may be required to pay all of the amounts owed under this
Note.
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17.
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Modification
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In the
event this Note is pledged or collaterally assigned by Lender at any time or
from time to time before the maturity date, neither Borrower nor Lender shall
permit any modification of this Note without the consent of the
pledgee/assignee.
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18.
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Number and
Gender
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In this
Note the singular shall include the plural and the masculine shall include the
feminine and neuter gender, and vice versa, if the context so
requires.
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19.
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Headings
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Headings
at the beginning of each numbered paragraph of this Note are intended solely for
convenience of reference and are not to be construed as being a part of the
Note.
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20.
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Time of
Essence
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Time is
of the essence with respect to every provision of this Note.
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21.
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Governing
Law
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This Note
shall be construed and enforced in accordance with the laws of the State of
Florida, except to the extent that federal laws preempt the laws of the State of
Florida.
IN WITNESS WHEREOF, Borrower
has executed this Promissory Note on the date set forth above.
| WILLING HOLDING, INC. | |
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By:
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/s/
Thomas L. DiStefano III
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Name:
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Thomas
L. DiStefano III
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Title:
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Chairman
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By:
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/s/
Melissa Conner
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Name:
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Melissa
Conner
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Title:
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Director
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