EXHIBIT 4.1
SECURED PROMISSORY NOTE
$100,000.00 New York, New York
March 1, 2006
FOR VALUE RECEIVED, the undersigned, Ocean West Holding Corporation, a
Delaware corporation, its subsidiary InfoByPhone, Inc., a Delaware corporation
and their subsidiaries and future assignees (the "Payors") with offices at 00
Xxxxxxxxx Xxxx, Xxx. 000, Xxxxxx, Xxxxxxxxxx 00000, hereby promises to pay to [
] as agent for itself and other participating lenders (the "Payee") with offices
at [ ], or at such place in the State of New York as Payee shall specify, One
Hundred Thousand Dollars ($100,000) (the "Principal Sum") together with interest
in such coin or currency of the United States of America at the time shall be
legal tender for the payment of public or private debts on the earlier to occur
of (1) June 30, 2006, and (2) the closing of one million ($1,000,000) Dollars in
debt, equity or other infusion of capital (the "Maturity Date").
This Note is one of two identical notes (except for the names and
collectively referred to as the "Notes"), issued on the date hereof. The second
note in the amount of $100,000 is payable to Xxxxxx Xxxxx, the Payors' Chief
Executive Officer. All of the proceeds of the loans evidenced by the Notes will
be used by the Payors for general corporate purposes, including working capital.
This Note supersedes and is a replacement for any and all prior unsecured notes
made by the Payors.
1. Interest. Interest shall accrue on the unpaid Principal Sum computed as
simple interest at the rate of sixteen percent (16%) per annum, and shall be
paid on the Maturity Date or upon any prepayment of this Note.
2. Unconditional Obligations; Fees; Waivers, etc.
2.1 The obligations to make payments provided for in this Note are
absolute and unconditional and not subject to any defense, set-off,
counterclaim, rescission, recoupment or adjustment whatsoever.
2.2 If Payee shall be required to institute any action to enforce the
collection of any amount of principal and/or interest due under this Note on
account of any default or failure by the Payors, there shall be immediately due
and payable from Payors, in addition to the then unpaid Principal Sum and
interest due under this Note all reasonable costs and expenses incurred by the
Payee in connection therewith, including, without limitation, reasonably
attorneys' fees and disbursements.
2.3 No forbearance, indulgence, delay or failure to exercise any right
remedy with respect to this Note shall operate as a waiver, nor as acquiescence
in any default, nor shall any single or partial exercise of any right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy.
2.4 This Note may not be modified or discharged orally, but only in
writing duly executed by Xxxxxx and Xxxxx.
2.5 Payors hereby waive presentment, demand and notice of dishonor,
protest and notice of protest.
3. Right of Prepayment. Payors shall have the right at its sole discretion
to prepay this Note in whole or in part at any time and such prepayment shall
include accrued interest on the entire Principal Sum through such date of
prepayment.
4. Events of Default. In the event of and immediately upon the occurrence
of any of the following events (an "Event of Default") this Note shall become
immediately due and payable without any action by Xxxxx and thereafter the
interest rate thereon under this Note shall be increased from 16% and bear
interest until paid at the applicable interest rate of 24% per annum or such
amount legally allowed by law (the "Default Interest Rate").
4.1 If Payors shall be in default of the payment provisions of this Note
for three (3) days following the provision of notice from Payee to Payors that
it intends to file the attached Affidavit for Judgment by Confession with the
court; or
4.2 If Payors make a general assignment for the benefit of creditors or
commences (as debtor) a case in bankruptcy, or commences (as debtor) any
proceeding under any other insolvency law; or
4.3 A case in bankruptcy or any proceeding under any other insolvency law
is commenced by or against Payors (as the debtor) and a court having
jurisdiction centers a decree or order for relief against Payors as the debtor
in such case or proceeding, or such case or proceedings consented to by Payors
remain undismissed for 60 days, or Payors consent or admit the material
allegations against it in any such case or proceeding; or
4.4 A trustee, receiver or agent (however named) is appointed or
authorized to take charge of substantially all of the property of Payors for the
purpose of general administration of such property for the benefit of creditors
and the order making such appointment or granting such authorization is not
vacated within 60 days, during which period such trustee, receiver or agent
shall not have taken any action with respect to the property of Payors which
might prejudice the interest of Payee hereunder.
If an Event of Default occurs and is continuing, Payee may pursue any
available remedy to collect the payment of all amounts due under this Note or to
enforce the performance of any provision of this Note. No waiver of any default
hereunder shall be construed as a waiver of any subsequent default, and the
failure to exercise any right or remedy hereunder shall not waive the right to
exercise such right or remedy thereafter.
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5. Security Interest. Payors hereby grant to Payee together with any other
holders of the Notes (collectively, the "Payees"), a security interest in all of
the patents, trademarks, intellectual property, equipment, fixtures, furniture,
inventory and accounts receivable of Payors and/or their subsidiaries until the
principal and interest owed Payees under the Notes are paid in full. The Notes
will be secured by this security agreement and Uniform Commercial Code Financing
Statements. Payors, by execution of this Note, certify under penalty of perjury
that except for, and subject to Schedule "A" annexed hereto, the security
pledged under this Note is not pledged, encumbered or hypothecated to any
parties other than the Payees.
6. Miscellaneous.
6.1 Heading of the various paragraphs of this Note are for the convenience
of reference only and shall in no way modify any of the terms or provisions of
this Note.
6.2 Any notice required or permitted to be given hereunder shall be deemed
to have been duly given when (a) personally delivered, or (b) one business day
after being sent by a nationally recognized overnight courier services with
written confirmation of delivery and delivery fees prepaid, or (c) three
business days after being mailed certified or registered U.S. mail, return
receipt requested, postage and certified or registered mail fees, as the case
may be, prepaid and addressed to the receiving party at its last know address.
6.3 This Note and the obligations of Payors and the rights of Payee shall
be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed entirely within such
state, without giving effect to the principles thereof relating to the conflict
of laws.
6.4 This Note contains all of the understandings and agreements of the
parties with respect to the subject matter discussed herein. All prior
agreements, whether written or oral, are merged herein and shall be of no force
or effect.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by
its duly authorized officer and its seal affixed hereto, as of the day and year
first above written.
OCEAN WEST HOLDING CORPORATION
By: /s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx, Chief Executive Officer
INFOBYPHONE, INC.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx, Chief Executive Officer
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SCHEDULE A
None.
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