EXHIBIT 4.1
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EIGHT PERCENT (8%) PROMISSORY NOTE
by and between NewMarket Technology, Inc., as Borrower
and
Glenwood Partners, L.P., as Lender
Dated as of March 9, 2005
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PROMISSORY NOTE
Raleigh, North Carolina U.S.A
U.S.$850,000.00
March 9, 2005
Parties; Amount
FOR VALUE RECEIVED, the undersigned, NewMarket Technology, Inc., a Nevada
corporation with offices at 00000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000 ("NewMarket") promises to pay to the order of Glenwood Partners,
L.P., a North Carolina limited partnership ("Lender"), with offices at 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, the principal
sum of Eight Hundred Fifty Thousand and no/100 United States dollars
(US$850,000.00).
Interest Rate
Interest shall accrue on the outstanding balance of this note beginning on
March 9, 2005, until the note is paid in full, at a rate of eight percent
(8%) per annum, except as otherwise stated herein. All interest due shall
be paid on the Due Date (defined below), or on the date that the
outstanding principal amount of this note is paid in full, whichever is
earlier.
Payment Schedule
The outstanding principal amount of this note shall be due and payable in
full on or before March 31, 2005 (the "Due Date").
Default
If any of the following events shall occur, the outstanding principal
balance of this note together with accrued interest thereon shall, on
demand by the holder of this note, be due and payable: any amount owing
under this note is not paid when due; a default under any other provision
of this note or under any other agreement providing security for the
payment of this note; a breach of any representation or warranty under this
note or under any such other agreement; failure to timely file any periodic
report with the SEC or required filing with the State of Nevada or any
other state; the liquidation or dissolution or NewMarket; the sale of a
material portion of the business and assets of NewMarket or any subsidiary
of NewMarket; the filing of a petition under any bankruptcy, insolvency or
similar law by NewMarket or any subsidiary of NewMarket; the making of any
assignment for the benefit of creditors by NewMarket or any subsidiary of
NewMarket; the filing of a petition under any bankruptcy, insolvency or
similar law against NewMarket or any subsidiary of NewMarket and such
petition not being dismissed within a period of thirty (30) days of the
filing. In each of the above cases, the holder shall give written notice of
default to NewMarket, and NewMarket shall have five (5) days to cure any
such default without penalty, and if cured, then this note shall not be
deemed in default.
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Default Interest
Except as otherwise stated herein, the outstanding balance of any amount
owing under this note which is not paid when due shall bear interest at the
rate of twelve percent (12%) per annum.
Usury Clause
Notwithstanding any other provision of this note, interest under this note
shall not exceed the maximum rate permitted by law; and if any amount is
paid under this note as interest in excess of such maximum rate, then the
amount so paid will not constitute interest but will constitute a
prepayment on account of the principal amount of this note. If at any time
the interest rate under this note would, but for the provision of the
preceding sentence, exceed the maximum rate permitted by law, then the
outstanding principal balance of this note shall, on demand by the holder
of this note, become and be due and payable. The parties acknowledge that
this is a commercial loan, made for bona fide business purposes.
Where to Make Payments
All payments of principal and interest shall be made in lawful currency of
the United States of America in immediately available funds before 5:00
p.m. New York time on the due date thereof at the offices of Lender as
stated in the first paragraph of this instrument, or in such other manner
or at such other place as the holder of this note designates in writing.
Tax Gross Up
All payments under this note shall be made without defense, set-off or
counterclaim, free and clear of and without deduction for any taxes of any
nature now or hereafter imposed. Should any such payment be subject to any
tax, NewMarket shall pay to the holder of this note such additional amounts
as may be necessary to enable the holder to receive a net amount equal to
the full amount payable hereunder. As used in this paragraph, the term
"tax" means any tax, levy, impost, duty, charge, fee, deduction,
withholding, turnover tax, stamp tax and any restriction or condition
resulting in a charge imposed in any jurisdiction upon the payment or
receipt of any amount under this note other than taxes on the overall net
income of the holder under the laws of North Carolina and of the United
States of America.
Expenses
NewMarket agrees to pay on demand any expenses of collecting and enforcing
this note and any collateral securing this note, including, without
limitation, reasonable expenses and fees of legal counsel, court costs and
the cost of appellate proceedings.
Governing Law
This note and the obligations of NewMarket shall be governed by and
construed in accordance with the law of the State of North Carolina, U.S.A.
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For purposes of any proceeding involving this note or any of the
obligations of NewMarket, NewMarket hereby submits to the non-exclusive
jurisdiction of the courts of the State of North Carolina and of the United
States having jurisdiction in the City of Raleigh, State of North Carolina,
and agrees not to raise and waives any objection to or defense based upon
the venue of any such court or based upon forum non conveniens. NewMarket
agrees not to bring any action or other proceeding with respect to this
note or with respect to any of its obligations in any other court unless
such courts of the State of North Carolina and of the United States
determine that they do not have jurisdiction in the matter.
Waiver of Presentment, Etc.
NewMarket waives presentment for payment, demand, protest and notice of
protest and of non-payment.
Delay; Waiver
The failure or delay by the holder of this note in exercising any of its
rights hereunder in any instance shall not constitute a waiver thereof in
that or any other instance. The holder of this note may not waive any of
its rights except by an instrument in writing signed by the holder.
Prepayment
NewMarket may prepay all or any portion of the principal of this note at
any time and from time to time without premium or penalty. Any such
prepayment shall be applied against the installments of principal due under
this note in the inverse order of their maturity.
Amendment
This note may not be amended without the written approval of the holder.
Maker:
NEWMARKET TECHNOLOGY, INC.
By: /s/Xxxxxx Xxxxxx
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(Duly Authorized Company Representative)
Accepted by:
GLENWOOD PARTNERS, L.P.
By: Glenwood Partners Capital Management, L.L.C.
By: /s/ LAB (illegible)
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(Duly Authorized Managing Member)
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