PROMISSORY NOTE
July 15, 2003 $200,000
WHEREAS, FinancialContent, Inc., a Delaware corporation (the "Company") and Asia
Pacific Ventures , a Turks and Caicos Islands company (the "Holder") entered
into a certain loan commitment agreement dated July 15, 2003 ("Loan Commitment")
whereby the Holder has agreed to make a certain amount of funds available
subject to certain terms and conditions, upon demand of the Company; and
WHEREAS, the Company pursuant to the terns of the Loan Commitment does hereby
make demand upon the Holder against the committed funds in the amount of Two
Hundred Thousand Dollars ($200,000);
NOW THEREFORE, in consideration duly noted herein, the Parties agree as follows
1. PROMISSORY NOTE. Subject to all the following terms and conditions
set forth in this Promissory Note (this "Note"), the Company, for value
received, promises to pay to Asia Pacific Ventures, (the "Holder"), in
accordance with the provisions hereof, the principal sum of Two Hundred Thousand
Dollars ($200,00.00) with interest at the rate set forth in Section 2, below,
accrued on such unpaid and principal amount from time to time outstanding until
paid, as follows: $20,000.00 per month commencing on September 15, 2003, and
continuing on the 15th day of each consecutive month thereafter until the
principal and applicable interest is paid in full. All payments of principal
and/or interest under this Note shall be paid at the offices of Asia Pacific
Ventures, at Suite 1-3 16th Floor, Kinwick Centre, 00 Xxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx, Xxxx Xxxx, unless otherwise instructed by the Holder.
2. INTEREST. Interest under this Note shall accrue at the rate of 8%,
per annum, from the date of such Note until paid in full. Such interest shall
only be payable upon the repayment of all principal due hereunder or as
otherwise specified herein.
3. SECURITY AGREEMENT. The payment of this note continues to be secured
by a Security Agreement dated December 13, 2001 from the Company to Asia Pacific
Ventures granting a security interest in and to the following described
property: accounts receivable, inventory, machinery, equipment, goodwill and
furniture, together with all other property described in or referred to in the
Security Agreement.
4. ACCELERATION. Notwithstanding the provisions contained in this Note,
the entire amount of principal advanced to the Company under this Note and
remaining unpaid, plus all unpaid interest on unpaid principal under this Note,
shall immediately be due and payable upon an Event of Default (as hereinafter
defined).
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5. EVENTS OF DEFAULT. If any of the following events shall occur (each
herein individually referred to as an "Event of Default"), the Company shall
immediately provide notice thereof to the Holder of this Note, who may declare
the entire unpaid principal and accrued interest on this Note immediately due
and payable, by written notice to the Company effective upon dispatch (provided
that upon the occurrence of an event described in subsection 5.1 or 5.2 below,
the entire unpaid principal and accrued interest on this Note shall immediately
become due and payable), without any other presentment, demand, protest or other
notice of any kind or character, all of which are hereby expressly waived,
anything herein to the contrary notwithstanding:
5.1. The institution by the Company of proceedings to be adjudicated
bankrupt or insolvent, or the consent by it to institution of bankruptcy or
insolvency proceedings against it or the filing by it of a petition or answer or
consent seeking reorganization or release under the Federal Bankruptcy Code, or
any other similar federal or state law, or the consent by it to the filing of
any such petition or the appointment of a receiver, liquidator, assignee,
trustee, or other similar official, of the Company, or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due or the taking of corporate action by the Company in
furtherance of any such actions; or
5.2. If, within sixty (60) days after the commencement of an action
against the Company seeking any bankruptcy, insolvency, reorganization,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such action shall not have been dismissed or all orders or
proceedings thereunder affecting the operations or the business of the Company
stayed, or if the stay of any such order or proceeding shall thereafter be set
aside, or if, within sixty (60) days after the appointment without the consent
or acquiescence of the Company of any trustee, receiver or liquidator of the
Company or of all or any substantial part of the properties of the Company, such
appointment shall not have been vacated; or
5.3. The Company shall have defaulted in payment of principal or
interest under this Note and such default shall have continued for ten days
following written notice thereof from the Holder.
6. REPRESENTATIONS. The Company hereby represents and warrants that:
6.1. Organization and Good Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
6.2. Due Authorization, Execution and Enforceability. The execution
and delivery by the Company of and the performance of its obligations under this
Note have been duly authorized by all necessary corporate action on the part of
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the Company and this Note has been duly and validly executed and delivered by
the Company and constitutes a valid and binding agreement of the Company
enforceable in accordance with its terms.
6.3. No Default or Conflicts. The execution and delivery of this
Note by the Company and the performance by the Company of its obligations under
this Note do not and will not conflict with or result in a violation or breach
of, or require any consent, approval, authorization or order under, (i) any
applicable law, statute, rule or regulation, judgment, injunction, order, decree
or agreement or (ii) the certificate of incorporation or bylaws of the Company.
7. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. This Note does not by
itself entitle the Holder to any voting rights or other rights as a stockholder
of the Company
8. AMENDMENT; WAIVER. Any term of this Note may be amended, and the
observance of any term of this Note may be waived (either generally or in a
particular instance and either retroactively or prospectively) by the written
consent of the Company and the Holder. Any amendment or waiver effected in
accordance with the previous sentence shall be binding upon each future holder
or transferee of this Note (or part thereof) and the Company. The Company and
all endorsers and guarantors of this Note hereby waive presentment, demand,
protest, notice of dishonor, notice of non-payment, notice of maturity and
notice of protest for nonpayment of this Note and consent to any extension or
postponement of the time of payment or any other indulgence.
9. ASSIGNMENT. This Note may not be assigned or transferred by the
Holder without the prior written consent of the Company.
10. SUCCESSORS AND ASSIGNS. Subject to Section 8, all covenants,
agreements and undertakings in this Note by or on behalf of any of the parties
shall bind and inure to the benefit of the respective successors and assigns of
the parties whether so expressed or not.
11. TREATMENT OF NOTE. To the extent permitted by generally accepted
accounting principles, the Company will treat, account and report the Note as
debt and not equity for accounting purposes and with respect to any returns
filed with federal, state or local tax authorities.
12. HEADINGS. The headings in this Note are for purposes of convenience
of reference only, and shall not be used to interpret this Note.
13. NOTICES. Any notice, request or other communication required or
permitted hereunder must be given in writing and shall be deemed to have been
duly given when personally delivered or when deposited in the United States mail
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by registered or certified mail, postage prepaid or sent via a nationally
recognized overnight courier service to the Company or the Holder at their
respective addresses set forth below:
To the Company:
FinancialContent, Inc.
000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xx. San Francisco, CA 94080
Attn: Wing Yu, CEO
To the Holder:
Asia Pacific Ventures
Suite 1-3 16th Floor
Kinwick Centre
00 Xxxxxxxxx Xxxx
Xxxxxxx Xxxx Xxxx, Xxxx Xxxx
The Company or Holder may each by written notice so given change its address for
future notices hereunder.
14. GOVERNING LAW; JURISDICTION. This Note shall be construed and
enforced in accordance with, and governed by, the internal laws of the State of
California, excluding that body of law applicable to conflicts of law.
15. ATTORNEYS' FEES. The parties hereto shall pay their own legal fees.
If action is brought to enforce the provisions of this Note, the prevailing
party shall be entitled to recover its reasonable costs and expenses, including
legal fees and disbursements of counsel.
16. TERMS BINDING. By execution hereof, the Holder of this Note (and
each subsequent holder of this Note) accepts and agrees to be bound by all the
terms and conditions of this Note.
17. SEVERABILITY. In the event any one or more of the provisions of
this Note shall for any reason be held to be invalid, illegal or unenforceable,
in whole or in part or in any respect, or in the event that any one or more of
the provisions of this Note operate or would prospectively operate to invalidate
this Note, then and in any such event, such provision(s) only shall be deemed
null and void and shall not affect any other provision of this Note and the
remaining provisions of this Note shall remain operative and in full force and
effect and in no way shall be affected, prejudiced or disturbed thereby.
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18. ENTIRE AGREEMENT. This Note constitutes and contains the entire
agreement of the parties and supersedes any and all prior negotiations,
correspondence, understandings, agreements, duties or obligations between the
parties respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties duly authorized representatives have
entered into this Note as of the date first written above.
FINANCIALCONTENT, INC.
a Delaware corporation
By: /s/ Xxxx Xx
----------------------------
Name: Xxxx Xx
Title: Chief Executive Officer
ASIA PACIFIC VENTURES
By: /s/ Xxx Xxxx Xxx
----------------------------
Name: Xxx Xxxx Xxx
Title:
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