HomeMy WebLinkAbout2008-026 Promissory Note - Brammo Motorsports
REVISED PROMISSORY NOTE
[Replaces Note executed February 16,2007]
DATED:
This 1.J.-- day of February, 2008
BRAMMO MOTORSPORTS, LLC., an Oregon Limited
Liability Company (Maker)
CITY OF ASHLAND, OREGON, a municipal
corporation of the State of Oregon, (Payee)
MADE BY:
PAYABLE TO:
Maker promises to pay to Payee the sum of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00), TOGETHER WITH INTEREST THEREON AT THE
RATE OF 5.00% per annum from date of execution hereof until paid; payable in
equal yearly installments of not less than $50,000.00, plus interest. The first
installment shall be paid on the 19th day of February, 2009, and a like installment
shall be paid on the same day of each successive year thereafter, until the entire
sum, including principal and accrued interest, has been paid.
In addition, in the event Maker fails to meet the employment requirements,
either fully or partially of the Oregon Special Public Works Fund grant for the time
period specified therein, Maker promises to pay Payee the sum of FIVE
THOUSAND DOLLARS ($5,000.00) for each fulltime equivalent employment
position that Brammo Motorsports, LLC is short of the required eighty (80) jobs in
the grant. Payee agrees that any funds received under this provision will be used
to repay the deficiency in the grant funds to OECDD. Said amount is due and
payable to Payee immediately upon Payee providing Maker notice of any
deficiencies identified by the State of Oregon. So long as Maker promptly pays any
amount under this paragraph, failure to meet the full employment requirements of
the grant shall not be considered a default hereunder.
Maker may prepay a portion or all of the balance at any time. However,
excess payments or prepayments shall not be credited as regular future payments,
nor excuse Maker from making the regular monthly payment provided above.
All payments shall be applied first to accrued interest to date of payment and
then to principal.
This obligation is secured by a Trust Deed and Security Agreement dated
February. 2008 and any amendment thereto, and is subject to all of the terms and
conditions of said Trust Deed and Security Agreement. The undersigned shall be
in default hereunder upon the occurrence of any of the following events:
a) Failure to pay when due the principal or interest due on this Promissory
Note or of any of the said installments;
b) The occurrence of any event of default under the terms and provision of
the Trust Deed or Security Agreement;
In the event of the occurrence of any of the foregoing events of default, the
entire outstanding sum of principal and interest shall become immediately due and
collectible at the option of the holder of this note, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived.
In the event any payment is not made as required by this Note, Payee may
employ an attomey for purposes of collection and, in such event, Maker shall
reimburse Payee's reasonable costs and attomey fees incurred thereby. If any
recover from the other party, in addition to costs and disbursements allowed by law,
such sums as the court may allow as attomey fees in the litigation, including any
appeals.
All persons liable either now or hereafter for the payment of this note
severally waive presentment, demand for payment and notice of nonpayment
thereof.
Failure to exercise any option to declare a default or accelerate the balance
due hereon shall not constitute a waiver of the right to exercise the same in the
event of any subsequent default. Modification of the terms of payment of this note
made at the request of any person liable thereof shall not impair such person's
liability or the liability of any other person now or hereafter liable for the payment
hereof.
Brammo Motorsports, LLC
~er~ President
Brammo Motorsports LLC
GUARANTY
The undersigned Guarantor unconditionally, irrevocably and personally
guarantees the promises of Brammo Motorsports, LLC, ("Company") of each and
every obligation under the revised promissory note dated ~h1jdYll 11. 2008. This
guaranty shall be continuing and shall terminate only upOllth~faction by
Company of each and every one of Company's obligations under the February
2008 note and February 2008 Trust Deed in accordance with all incorporated
terms and conditions, including but not limited to payment of the note.
GUARANTORS' CONSENT
Guarantors consent that it will not be necessary for holder, in order to enforce
this guaranty, to initiate an action or exhaust legal remedies against Company.
Guarantors consent that this guaranty may be immediately enforced upon
nonpayment when due of any amount payable to City of Ashland ("City") under
the note. Guarantors consent that City may, from time to time, extend the time
for performance or otherwise modify, alter, or change the note, may extend the
time for payment of the note and may receive and accept notes, checks, and
other instruments for the payment of money made by Company without in any
way releasing or discharging guarantors from their obligations under this
agreement. This guaranty shall not be released, extinguished, modified, or in
any way affected by failure on the part of City to enforce all the rights and
remedies available to it under the note.
BANKRUPTCY OF COMPANY. The bankruptcy of Company shall not relieve
Guarantors of their obligations under this guaranty.
JOINT AND SEVERAL LIABILITY. This guaranty shall bind guarantors jointly
and severally and their respective heirs, personal representatives, and assigns.
A TIORNEY FEES. In the event of any action to enforce any of the terms or
conditions of this guaranty, the prevailing party or parties shall be entitled to
recover from the other party or parties reasonable attorney fees fixed by the trial
court and all appellate courts.
Dated this 1-'1-- day of February, 2008
~er