A: Gotham City Negotiable Promissory Note
The Problem
In order to carry out his crusade against crime and injustice in Gotham City, the Batman burns through significant resources. The production of countless gadgets, not to mention the research and development behind such production, must take place somewhere. As billionaire playboy Bruce Wayne owns Wayne Enterprises, his access to a highly advanced research and development department and its attached production facilities is a convenience unparalleled throughout the greater crime-fighting community. Yet if the company’s seemingly infinite production of bat-shaped vehicles did not recoup some manner of profit, many questions would be raised at meetings of its Board of Directors, and the identity of the Dark Knight would certainly be exposed. Further, if Bruce Wayne were to commingle personal and company funds to fight his war, the corporate veil would be of little defense against curious financial investigators.
The Transaction
In order to hide his nocturnal activities, while ensuring a ready supply of batarangs and utility belts, Bruce Wayne must supplant Wayne Enterprises’ massive bat-related expenditures with his own tragedy-tainted inheritance money. To that end, he provides Wayne Enterprises CEO Lucius Fox with fifteen million dollars per year, allocated monthly and evidenced by a promissory note. Mr. Fox had his attorney draw up the particulars in order to protect himself.After all, one does not leave such things to a depressive vigilante that dresses like a bat and spends his nights punching psychotic clowns.
NEGOTIABLE PROMISSORY NOTE
$15,000,000
PLACE OF EXECUTION: GOTHAM CITY, GOTHAM DATE: NOV. 5, 2009
THIS PROMISSORY NOTE (the “Note”) is effective as of the date it is executed by Bruce Wayne (“Maker”), for the purpose of evidencing an obligation from Maker to Wayne Enterprises Inc., a Gotham corporation with its principal offices located at 500 Finger St., Gotham City (“Payee”).
1. PROMISE TO PAY. For value received and continued discretion, the undersigned, Bruce Wayne, unconditionally promises to pay Payee or order, at the accounting offices of Warren White, 360 Murphy Avenue, Gotham City, or at such other place as may be designated in writing by the Holder of this Note, the principal sum of Fifteen Million Dollars ($15,000,000) in lawful money of the United States of America, with no additional interest, costs or fees (in the event of timely payment) to be paid in the following 12 installments. The checks for all installments are to be made payable to “Warren White, Accountant for Wayne Enterprises” and are to be mailed directly to the offices of Warren White. via overnight mail. Installment payments shall be made as follows:
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Dec. 5, 2009.
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Jan. 5, 2010.
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Feb. 5, 2010.
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Mar. 5, 2010.
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Apr. 5, 2010.
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before May 5, 2010.
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Jun. 5, 2010.
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Jul. 5, 2010.
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Aug. 5, 2010.
- One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Sept. 5, 2010.
- One million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Oct. 5, 2010.
- One million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Nov. 5, 2010.[i]
2. MANNER OF PAYMENT. All installment payments shall be made by certified check drawn on the bank account of Maker.[ii]
3. NOTICE OF NON-PAYMENT. If Maker fails to make a payment set forth above on its due date, Payee shall give Maker written notice of such nonpayment. The date of such notice shall be deemed to be the date that Payee transmits such notice by facsimile to the number set forth in Paragraph 4 below. Maker shall have Five (5) days from the date of such notice to make said payment. The date that a payment is made pursuant to such notice shall be deemed to be the date that such payment is mailed via overnight mail to the offices of Warren White.[iii]
4. NOTICE. Any notice to be provided to Maker pursuant to Paragraph 3 or any other notice to be given by Maker or Payee shall be given in writing, by facsimile and first class mail, as follows:
| MAKER | PAYEE |
| Bruce Wayne c/o Alfred Pennyworth Wayne Manor: 1007 Mountain Dr., Gotham County Fax: 555-422-8626 | Lucius Fox, CEO, Wayne Enterprises 1 Finger St., Gotham City Fax: 555-369-2315 |
5. OPTIONAL PREPAYMENT. This Note may be prepaid in whole or in part at any time, without premium or penalty.[iv]
6. EVENTS CONSTITUTING DEFAULT. Maker shall be immediately in default upon the occurrence of any of the following events:
(a) Maker fails to pay any amount due hereunder in full when due and Maker fails to make such payment pursuant to the five-day notice provisions of Paragraph 3 above;
(b) Maker violates or otherwise fails to perform or observe any term, covenant, or agreement contained in this Note;
(c) a receiver is appointed for all or any part of Maker’s property;
(d) Maker files or has filed against it any petition under any provision of the Bankruptcy Code, or any future bankruptcy law;
(e) default under any collateral, mortgage or security agreement given as security for this note or as security for the guaranty of payment of the obligations of the Maker hereof, or under any extension or modification thereof;
(f) Maker fails to pay any tax when due;
(g) any misrepresentation is made to the Holder hereof by the Maker for the purpose of obtaining credit or an extension of credit to the maker;
(h) sale or transfer of substantially all of Maker’s assets; or
(i) Bruce Wayne ceases to be Director of the Wayne Foundation charitable organization.[v]
7. ACCELERATION. In the event that Maker defaults under this Note, then, at the option of the Holder of this Note, the entire unpaid balance owing shall become immediately due and payable. Interest on the indebtedness evidenced by this Note after default shall be due and payable at the rate of five percent (5%) per month, or the highest rate allowable by law, computed from the day of default. Neither delay in asserting this right nor the acceptance of past due payments shall be deemed a waiver thereof.[vi]
8. DISHONORED CHECKS. In the event that any payment on this Note is made by a check that is dishonored by the drawee bank, for any reason whatsoever, there shall be added to the amount owing under this Note, the sum of Five-thousand Dollars ($5000.00) to cover banking charges, expenses related to such dishonored check, and inconvenience to the Holder of this Note.[vii]
9. WAIVERS. Maker waives presentment, protest and demand, notice of protest, dishonor and nonpayment of this Note and expressly agrees that this Note, or any payment hereunder, may be extended from time to time at the written consent of the Holder, all without in any way affecting the liability of the Maker. In any litigation with the Holder, whether or not arising out of or relating to this Note or any collateral security therefor, said parties expressly waive trial by jury, and in addition, expressly waive the right to interpose any defense based on any statute of limitations or any claim of laches and any set-off, counterclaim or cross-claim of any nature or description.[viii]
10. ATTORNEYS’ FEES AND INTEREST. If an event of default has occurred and the Holder of this Note refers it to any attorney for collection, Maker agrees to pay all costs and reasonable attorneys’ fees incurred by the Holder of this Note in connection therewith. Interest shall accrue from the date of default at the rate of sixteen percent (16%) per annum or the maximum legal interest rate, whichever is greater.[ix]
11. CONSTRUCTION. This note shall be governed and construed in accordance with the laws of the State of Gotham. Any provision hereof which may prove unenforceable under any law shall not affect the validity of any other provision hereof. For purposes of any action or proceeding involving this promissory note or any of the obligations of the undersigned, the undersigned hereby irrevocably submits to the jurisdiction of the courts of the State of Gotham and of the United States having jurisdiction in the County of Gotham and the State of Gotham, and agrees not to raise and waives any objection to or defense based upon the jurisdiction or venue of any such court. The undersigned agrees not to bring any action or other proceeding with respect to this Note or with respect to any of its obligations hereunder in any other court unless such courts of the State of Gotham and of the United States determine that they do not have jurisdiction in the matter.[x]
12. SUCCESSORS. The terms and conditions of this Note shall be binding jointly and severally upon the successors, assigns, heirs, survivors and personal representatives of Maker and shall inure to the benefit of any Holder, its legal representatives, successors and assigns.[xi]
13. NO-DEFAULT DATES. If the due date of any payment under the schedule in Paragraph 1 falls on a Saturday, Sunday or public holiday, such payment may be made on the next business day without constituting a default in payment under this Note.[xii]
14. PRESERVATION OF HOLDER’S RIGHTS AND REMEDIES. None of the foregoing shall in any way impact, limit or impair Holder’s rights and remedies in connection with the enforcement of this Note. The Holder hereof shall not by any delay, commission, failure to act or otherwise be deemed to have waived any right, power, privilege or remedy hereunder, and no waiver whatever shall be valid unless in writing signed by the Holder hereof, and then only to the extent therein set forth. No exercise of any right, power, privilege or remedy provided-for herein shall preclude any such subsequent exercise, to any degree, whether performed fully or partially. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law and may be exercised singly or concurrently.[xiii]
15. AMENDMENT. This note may not be changed or terminated orally, but only by a writing signed by the Holder hereof, and only after the Holder has been afforded a period of not less than three days in which to consult with a qualified advisor.[xiv]
Maker: Bruce Wayne
_________
[Signature]
Payee: Wayne Enterprises
_________
[Signature] By: Lucius Fox, CEO
[i] With noted financier Warren White controlling payments, Mr. Fox retains a level of plausible deniability as regards the nature of the funds. As the note satisfies the requirements of § 3-104(a) of the Uniform Commercial Code, it constitutes a negotiable instrument. Such a device allows the actors to sell the Note to other individuals, including other of Wayne Enterprises’ many clients (e.g., S.T.A.R. Labs, LexCorp, etc.), the better to camouflage the projects and launder the influx of funds. Using a payment schedule rather than a lump sum serves to minimize undue attention which the payments might otherwise draw, while still ensuring that sufficient capital remains available to meet the idiosyncratic and exacting specifications of the World’s Greatest Detective.
[ii] Beyond merely adding the extra security of bank-certification, requiring Bruce Wayne’s payments to be made by check rather than in cash provides an added layer of paperwork with which to ensure the billionaire’s continued cooperation, should investigators turn their attention to the activities of the Wayne Enterprises R&D division. With a long paper trail leading to Wayne Manor, and by extension to the Bat Cave, Mr. Fox also maintains a distinct advantage in any subsequent contractual negotiations.
[iii] Mr. Wayne is a busy man, prone to brief disappearances (whether away serving the Justice League of America or undercover as his Gotham underworld alter-ego, Matches Malone), and so the five day grace period exists to serve his unconventional schedule. Still, the period is relatively short, so that Mr. Fox may move quickly to cover his own assets, and those of the company, in the event of default.
[iv] In the event that the Batman’s needs exceed those funds provided for under the Paragraph 1 payment schedule, Mr. Wayne has the option of paying for the difference wherever a shortfall presents itself. This provision ensures that Mr. Fox is never forced to choose between illegally using corporate funds to fill a bat-order, on the one hand, or disappointing the scary man in the cowl, on the other.
[v] The safest way to shield Mr. Fox from the more dangerous aspects of Bruce Wayne’s double life is to ensure that a broad spectrum of activities and events are sufficient to trigger default under the Note, whereupon the Wayne Enterprises CEO may immediately move to recall the full extent of the Note’s obligations, unconditionally and without exception. Given that an alarming number of the Batman’s enemies have determined his true identity throughout the years (e.g., Dr. Thomas Elliot, Ra’s al Ghul, Dr. Hugo Strange, Edward Nigma, etc.), it is particularly advisable for Mr. Fox to regard certain events as warning signs that Bruce Wayne has in fact either been replaced by, or is under the influence of, such a dangerous individual. To that end, the occurrence of any event outlined in sections (a) through (i) of this provision should be seen to represent not only evidence of such financial difficulties as would ordinarily suggest to the prudent observer that outstanding debts should be collected, but also evidence that the Maker is not the real Bruce Wayne. In particular, if sections (h) or (i) are triggered, it may be assumed that the Maker is either under the influence of one of Jervis Tetch’s mind-control devices, or, alternatively, that Jane Doe has murdered Bruce Wayne and is wearing his skin as a disguise. The legacy of Thomas and Martha Wayne is embodied at Wayne Manor, and lives on through the charitable work of the Wayne Foundation; the real Bruce Wayne would never part with either.
[vi] Should Bruce Wayne (or, as noted, his doppelganger) default under the Note, this provision allows Mr. Fox to immediately move to recall the full extent of the Note's obligation, unconditionally and without exception. The accrual of interest on any unpaid balance thereafter increases the likelihood that Wayne Enterprises may claim a return from its investment in the Batman, without regard to the original pay schedule, even if the Dark Knight’s grip on the Gotham underworld may be in jeopardy. Putting a swift end to the contractual relationship under such circumstances serves to protect not only the corporation’s interests, but also Mr. Fox’s personal health and well-being.
[vii] In recognition of the fact that Mr. Fox's time is very valuable, this provision imposes a strict penalty for wasting that time. The CEO of Wayne Enterprises should be well-compensated for efforts expended due to the failure of an absent-minded young billionaire to maintain funds in his checking account sufficient to meet his obligations.
[viii] This provision further reinforces the negotiability of the promissory note, emphasizing that the Maker's obligations to the Holder are not subject to strict adherence to formal rules of presentment, protest, demand, or notice, but rather are absolute. The provision further waives both parties' right to elect a jury trial, in recognition of the fact that while members of the Gotham judiciary look favorably upon the efforts of the Batman, forcing Bruce Wayne to appear before a jury of his peers to justify Wayne Enterprises' massive expenditures would threaten the interests of all parties. Defenses which might be raised against a possible Holder of the Note are also waived in the interests of remaining discreet.
[ix] The natural and foreseeable consequences of Mr. Wayne's default should not fall on Mr. Fox, but rather should be borne by the billionaire.
[x] With nearly infinite resources, few concrete ties to the Gotham community, and a fleet of bat-shaped vehicles to traverse land, sea, and air, Bruce Wayne can afford to live comfortably anywhere in the world, and to do so at hardly a moment's notice. Requiring that the Maker waive venue and jurisdiction defenses ensures that the playboy may not simply pull up his local roots and evade the reach of the Gotham's judiciary whenever it pleases him to do so. It also ensures that the laws governing the contract are those well-known to Mr. Fox, rather than any number of obscure foreign edicts with which the globe-trotting Detective might be familiar.
[xi] As the Wayne Enterprises R&D division is not infallible, neither is the Batman invincible; thus, in the event of Bruce Wayne’s death, the present Note will continue in force and effect with his successors becoming responsible for the remaining debt obligation. Indeed, as it is likely that the mantle of the Batman will be taken up quickly by one of his sons, whether adoptive (Dick Grayson or Tim Drake) or biological (Damian Wayne), the need for Wayne Enterprises to continue to fund the ongoing mission of Gotham’s protector is likely to continue, and so the contractual relationship should remain place.
[xii] Just because the Caped Crusader never takes a day off doesn’t mean that Mr. Fox should have to be out double-checking the timeliness of payments on Thanksgiving.
[xiii] This provision once again reinforces the notion that the Maker's obligation to the Holder of the Note is absolute, subject to no exceptions, and dependent upon no additional event or occurrence. The provision further provides that the Holder, whether Lucius Fox or any subsequent individual, may fully exercise any rights found within the Note, or those provided by law.
[xiv] Given the efficacy of the Batman's well-known persuasive techniques, not to mention his access to manipulative technologies and chemicals, it is highly advisable that any change to the existing agreement be made in writing, and that consultation with both lawyers and accountants take place prior to any commitments being made. The Batman may adhere to a strict moral code, but good-faith contractual negotiation is not really his style.
