This Promissory Note involves
Title: PROMISSORY NOTE VARIABLE RATE
PROMISSORY NOTE VARIABLE RATE
$2,000,000.00 DECEMBER 1, 2006
FOR VALUE RECEIVED, SYNTAX GROUPS CORPORATION, a California corporation and
SYNTAX CORPORATION, a Nevada corporation (individually and collectively,
"Borrower"), jointly and severally promise to pay to PREFERRED BANK, a
California banking corporation ("Lender"), or its order, at its office located
at 601 South Figueroa Street, 20th Floor, Los Angeles, California 90017, or at
such other place as the holder hereof may designate, in lawful money of the
United States of America, the principal sum of Two Million and 00/100 Dollars
($2,000,000.00), or so much thereof as shall have been advanced and is
outstanding, together with interest on the outstanding principal balance, until
paid in full in accordance with the terms, conditions and provisions as
hereinafter set forth in this Amended and Restated Promissory Note Variable Rate
(this "Note"). This Note supersedes and fully amends and restates the Existing
Note (as defined below).
INTEREST RATE. Interest on the outstanding principal balance of this Note shall
be computed and calculated based upon a three hundred sixty (360)-day year and
actual days elapsed and shall accrue at the per annum rate (the "Note Rate") of
one-half of one percent (0.5%) over the Prime Rate, as the rate may change from
time to time. "Prime Rate" shall mean the variable rate of interest per annum
announced, declared and/or published from time to time by Lender as its "Prime
Rate" with the understanding that Lender's "Prime Rate" is one of its base rates
and serves as a basis upon which effective rates of interest are calculated for
loans making reference thereto and may not be the lowest of Lender's base rates.
If the Prime Rate becomes unavailable during the term of this Note, Lender may
designate a comparable substitute index after notice to Borrower.
PAYMENTS. Interest shall be due and payable monthly, in arrears, based upon the
actual number of days elapsed for that monthly period, commencing on January 5,
2007, and shall continue to be due and payable, in arrears, on the same day of
each calendar month thereafter until the Maturity Date (as hereinafter defined).
Upon the Maturity Date, the entire unpaid obligation outstanding under this Note
shall become due and payable in full.
All payments due hereunder, including payments of principal and interest, shall
be made to Lender in United States Dollars and shall be in the form of
immediately available funds acceptable to the holder of this Note.
APPLICATION OF PAYMENTS. All payments received by Lender from, or for the
account of, Borrower due hereunder shall be applied by Lender, in its sole and
absolute discretion, in the following manner, or in any other order or manner as
a. First. To pay any and all interest due, owing and accrued;
b. Second. To pay any and all costs, advances, expenses or fees
due, owing and payable to Lender, or paid or incurred by
Lender, arising from or out of this; and
c. Third. To pay the outstanding principal balance on this Note.
All records of payments received by Lender shall be maintained at Lender's
office, and the records of Lender shall, absent manifest error, be binding and
conclusive upon Borrower. The failure of Lender to record any payment or expense
shall not limit or otherwise affect the obligations of Borrower under this Note.
MATURITY DATE. On November 5, 2007 ("Maturity Date"), the entire unpaid
principal balance, and all unpaid accrued interest thereon, shall be due and
payable without demand or notice. In the event that Borrower does not pay this
Note in full on the Maturity Date then, as of the Maturity Date and thereafter
until paid in full, the interest accruing on the outstanding principal balance
hereunder shall be computed, calculated and accrued on a daily basis at the
Default Rate (as hereinafter defined).
UNPAID EXPENSES. Expenses that are not received by Lender within ten (10)
calendar days from the date such expenses become due, shall, at the sole
discretion of Lender, be added to the principal balance and shall from the date
due bear interest at the Default Rate.
HOLIDAY. Whenever any payment to be made under this Note shall be due on a day
other than a business day, including Saturdays, Sundays and legal holidays
generally recognized by banks doing business in California, then the due date
for such payment shall be automatically extended to the next succeeding business
day, and such extension of time shall in such cases be included in the
computation of the interest portion of any payment due hereunder.
NO OFFSETS OR DEDUCTIONS. All payments under this Note shall be made by Borrower
without any offset, decrease, reduction or deduction of any kind or nature
whatsoever, including, but not limited to, any decrease, reduction or deduction
for, or on account of, any offset, present or future taxes, present or future
reserves, imposts or duties of any kind or nature, that are imposed or levied by
or on behalf of any government or taxing agency, body or authority by or for any
municipality, state or country. If at any time, present or future, Lender shall
be compelled, by any Law, rule, regulation or any other such requirement which
on its face or by its application requires or establishes reserves, or payment,
deduction or withholding of taxes, imposts or duties, to act such that it causes
or results in a decrease, reduction or deduction (as described above) in payment
received by Lender, then Borrower shall pay to Lender such additional amounts,
as Lender shall deem necessary and appropriate, such that every payment received
under this Note, after such decrease, reserve, reduction, deduction, payment or
required withholding, shall not be reduced in any manner whatsoever.
DEFAULT. Any one or more of the following events or occurrences shall constitute
a default under this Note (hereinafter "Default"):
(i) Lender does not receive a payment hereunder when due; or
(ii) There shall be an Event of Default under that certain Business
Loan and Securit