PROMISSORY NOTE
Exhibit
4.12
PROMISSORY
NOTE
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Borrowers:
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Lender:
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Onstream
Media Corporation
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Thermo
Credit LLC
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0000
XX 00 Xxxxxx
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000
Xxxxxx Xxxxxx
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Pompano
Beach, FL 33069
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Suite
2565
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______________________________
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New
Orleans,
LA 70113
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Principal Amount:
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Maturity Date of Note:
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Date of Note:
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U.S.
$1,000,000.00
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December
28, 2009
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December
28, 2007
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PROMISE
TO PAY. For value received, the undersigned makers
(hereinafter referred to as “Borrower,” which term means individually,
collectively, and interchangeably any, each and/or all of them), promises to pay
to the order of THERMO CREDIT LLC (“Lender”), or its registered assigns, in
lawful money of the United States of America the sum of One million and No/100
($1,000,000.00) Dollars, or such other or lesser amounts as may be reflected
from time to time on the books and records of Xxxxxx as evidencing the aggregate
unpaid principal balance of loan advances made to Borrower.
LOAN
AGREEMENT. This Note is made
and executed pursuant to, and is subject to, that certain Commercial Business
Loan Agreement among the Borrower and Lender, dated as of December 28, 2007 (as
amended from time to time, the “Loan Agreement”). All capitalized
terms used in this Note (and not otherwise defined herein) shall have the
meanings defined in the Loan Agreement.
INTEREST
RATE. Interest
shall accrue on the outstanding principal amount at the rate per annum of Wall
Street Journal Prime Rate plus eight (8.0%) per cent per annum established in
accordance with the Loan Agreement described above between Thermo and
Borrower. The term "WALL Street Journal Prime Rate" is and shall mean
the variable rate of interest, on a per annum basis, which is announced and/or
published in the Money Rates Section of The Wall Street Journal from time to
time with the rate of interest to change when and as said prime lending rate
changes. All interest shall be computed on the basis of the actual
number of days elapsed over a year composed of 360 days. Interest
shall accrue from date of advance.
ADVANCES. This Note is a
revolving commercial line of credit “master note.” Advances under
this Note may be requested only as provided in the Loan
Agreement. Xxxxxxxx agrees to be liable for all sums either advanced
in accordance with the instructions of an authorized person or credited to any
deposit account of Xxxxxxxx. The unpaid principal balance owing on this Note at
any time may be evidenced by endorsements on this Note or by Xxxxxx’s internal
records, including daily computer print-outs. Lender will have no
obligation to advance funds under this Note if: (a) a Default has occurred and
is continuing; (b) Borrower ceases doing business or is insolvent; or (c)
Borrower has applied funds provided pursuant to this Note for purposes other
than those permitted by the Loan Agreement.
PAYMENT
SCHEDULE. Interest on this
Note shall be payable monthly in arrears on the last day of each month,
beginning January 31, 2008 and continuing on the last day of each month until
the maturity date. The balance of all outstanding principal and accrued but
unpaid interest shall be due and payable on December 28, 2009.
EARLY
TERMINATION. Borrower may
terminate this Note at any time. If Borrower terminates this Note, or
if Lender accelerates payment of this Note, Borrower understands that, unless
otherwise required by law, any prepaid fees or charges will not be subject to
rebate and will be earned by Xxxxxx at the time this Note is
signed.
EARLY
TERMINATION FEE. In the event of early termination of the Note, Thermo
shall receive an Early Termination Fee of Two percent (2.0%) of the highest
aggregate Loan Commitment Amount.
LATE
CHARGE. The
Borrower agrees to pay Xxxxxx, on demand, a late charge equal to 5% of any
installment that is not paid within 10 days after it is due and 5% of the
interest portion of the payment due upon the final maturity date of this Note if
that payment is not paid within 10 days after it is due. This late
charge will never be less than $50.00. This provision shall not be
deemed to excuse a late payment or be deemed a waiver of any other right Lender
may have, including, without limitation, the right to declare the entire unpaid
principal and interest immediately due and payable.
ADDITIONAL
INTEREST. If Borrower
defaults under this Note or the Loan Agreement, Lender shall have the right to
prospectively increase the interest rate under this Note by 3% per annum during
the continuance of such default.
LENDER’S
RIGHTS UPON DEFAULT. Upon the
occurrence of and during the continuation of any Event of Default, Lender shall
have all of the rights and remedies provided in the Loan Agreement.
DEPOSIT
ACCOUNTS. As collateral
security for repayment of this Note and all renewals and extensions, as well as
to secure any and all other loans, notes, indebtedness and obligations that
Borrower may now and in the future owe to Lender or incur in Lender’s favor,
whether direct or indirect, absolute or contingent, due or to become due, of any
nature and kind whatsoever, Borrower is granting Lender a continuing security
interest in any and all funds that Borrower may now and in the future have on
deposit with Lender, or in certificates of deposit or other deposit accounts
with the Lender as to which Borrower is an account holder. Xxxxxxxx
further agrees that upon the occurrence and during the continuance of any Event
of Default, the Lender shall have the right to set off any such funds of the
Borrower in the possession of the Lender against any amounts then due by the
Borrower to the Lender pursuant to this Note.
2
COLLATERAL. This Note is
secured by the Collateral (as defined in the Loan Agreement).
ATTORNEYS’
FEES. If Xxxxxx refers
this Note to an attorney for collection, or files suit against Borrower to
collect this Note, or if Borrower files for bankruptcy or other relief from
creditors, Xxxxxxxx agrees to pay Xxxxxx’s reasonable attorneys’
fees.
NSF CHECK
CHARGES. In the event that
Borrower makes any payment under this Note by check and Xxxxxxxx’s check is
returned to Lender unpaid due to nonsufficient funds in Borrower’s deposit
account, Xxxxxxxx agrees to pay Xxxxxx an additional NSF check charge in the
amount of $30.
GOVERNING
LAW. Xxxxxxxx agrees
that this Note and the loan evidenced hereby shall be governed under the laws of
the State of Louisiana. Specifically, this business or commercial
Note is subject to La.
R.S. 9:3509, et
seq.
WAIVERS. Borrower hereby
waives presentment for payment, protest, notice of protest and notice of
nonpayment, and all pleas of division and discussion, and severally agree that
their obligations and liabilities to Lender hereunder shall be on a “solidary”
or “joint and several” basis. Xxxxxxxx agrees that discharge or
release of any party who is or may be liable to Lender for the indebtedness
represented hereby, or the release of any collateral directly or indirectly
securing repayment hereof, shall not have the effect of releasing an other party
or parties, who shall remain liable to Lender, or of releasing any other
collateral that is not expressly released by Lender. Xxxxxxxx
additionally agrees that Xxxxxx’s acceptance of payment other than in accordance
with the terms of this Note, or Xxxxxx’s subsequent agreement to extend or
modify such repayment terms, or Lender’s failure or delay in exercising any
rights or remedies granted to Lender, shall likewise not have the effect of
releasing Borrower from Borrower’s respective obligations to Lender, or of
releasing any collateral that directly or indirectly secures repayment hereof.
In addition, any failure or delay on the part of Lender to exercise any of the
rights and remedies granted to Lender shall not have the effect of waiving any
of Lender’s rights and remedies. Any partial exercise of any rights
and/or remedies granted to Xxxxxx shall furthermore not be construed as a waiver
of any other rights and remedies; it being Borrower’s intent and agreement that
Xxxxxx’s rights and remedies shall be cumulative in nature. Borrower
further agrees that, should any event of default occur or exist under this Note,
any waiver or forbearance on the part of Lender to pursue the rights and
remedies available to Lender, shall be binding upon Lender only to the extent
that Xxxxxx specifically agrees to any such waiver or forbearance in
writing. A waiver or forbearance on the part of Lender as to one
event of default shall not be construed as a waiver or forbearance as to any
other default. Borrower and each guarantor of this Note further agree
that any late charges provided for under this Note will not be charges for
deferral of time for payment and will not and are not intended to compensate
Lender for a grace or cure period, and no such deferral, grace or cure period
has been or will be granted to Borrower in return for the imposition of any late
charge. Borrower recognizes that Xxxxxxxx’s failure to make timely
payment of amounts due under this Note will result in damages to Lender,
including but not limited to Xxxxxx’s loss of the use of amounts due, and
Xxxxxxxx agrees that any late charges imposed by Xxxxxx hereunder will represent
reasonable compensation to Lender for such damages. Failure to pay in
full any installment or payment timely when due under this Note, whether or not
a late charge is assessed, will remain and shall constitute an Event of Default
hereunder.
3
SUCCESSORS
AND ASSIGNS LIABLE. Borrower’s
obligations and agreements under this Note shall be binding upon Xxxxxxxx’s
successors, heirs, legatees, devisees, administrators, executors and
assigns. The rights and remedies granted to Lender under this Note
shall inure to the benefit of Xxxxxx’s successors and assigns, as well as to any
subsequent holder or holders of this Note.
CAPTION
HEADINGS. Caption headings
of the sections of this Note are for convenience purposes only and are not to be
used to interpret or to define their provisions. In this Note,
whenever the context so requires, the singular includes the plural and the
plural also includes the singular.
SEVERABILITY. If any provision
of this Note is held to be invalid, illegal or unenforceable by any court, that
provision shall be deleted from this Note and the balance of this Note shall be
interpreted as if the deleted provision never existed.
PRIOR TO
SIGNING THIS NOTE, XXXXXXXX READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
NOTE. XXXXXXXX AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES
RECEIPT OF A COMPLETED COPY OF THE NOTE.
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BORROWER:
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Onstream
Media Corporation
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| By: |
/s/ Xxxxx X. Xxxxxx /
CEO
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