Contract
THIS
12% SECURED NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE MADE SUBJECT TO A SECURITY
INTEREST, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED, OR OTHERWISE TRANSFERRED
WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF
APPLICABLE FEDERAL AND STATE SECURITIES LAWS. TRANSFER OF THIS 12% SECURED NOTE
ALSO IS RESTRICTED BY THE SECURITIES PURCHASE AGREEMENT REFERRED TO
HEREIN.
THE
PAYMENT AND PERFORMANCE OF THIS 12% SECURED NOTE IS SUBJECT TO THE TERMS AND
CONDITIONS OF THAT CERTAIN INTERCREDITOR AGREEMENT ENTERED INTO AS OF JANUARY 3,
2005, BY THE HOLDER OF THIS 12% SECURED NOTE, WASHINGTON MUTUAL BANK, IC
MARKETING, INC., AMERCIAN CONSUMER PUBLISHING ASSOCIATION, INC., RAYBOR
MANAGEMENT, INC., BACK 2 BACK’S, INC., AND FREEDOM FINANCIAL,
INC.
CERTIFICATE
NO. 1
| $1,500,000.00 |
January 6,
2005 |
For value
received, IC
MARKETING, INC., a
Nevada corporation (“ICM”),
AMERICAN
CONSUMER PUBLISHING ASSOCIATION, INC., an
Oregon corporation (“ACPA”),
RAYBOR
MANAGEMENT, INC., a
Delaware corporation (“RMI”), and
BACK 2
BACK’S, INC., an
Oregon corporation (“B2B” and
together with ICM, ACPA, RMI, and B2B are sometimes collectively referred to in
this Agreement as the “Issuers”),
jointly and severally and collectively, hereby promise to pay to the order of C3
CAPITAL PARTNERS, L.P., Delaware limited partnership, or its successors or
assigns (together with its successors and assigns “Holder”), at
its office at 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, or at
such other place as Holder may from time to time designate, the sum of ONE
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,500,000.00) together with
interest thereon, as provided herein, from the date set forth in Section
2 below
until fully paid (the “Indebtedness”), all
without relief from valuation or appraisement laws. This 12% Secured Note (the
“Note”) is
issued pursuant to a Securities Purchase Agreement dated as of January 3, 2005
(as amended, modified, or replaced from time to time, the “Securities
Purchase Agreement”) among
the Issuers and the Holder.
1.
Payment
of Principal and Interest. Subject
to acceleration or earlier required payment as provided for elsewhere in this
Note, the Securities Purchase Agreement or any of the other agreements,
documents, and instruments relating to any of the Indebtedness or any security
therefor (collectively, together with this Note and the Securities Purchase
Agreement, the “Investment
Documents”), the
principal balance of this Note, and any accrued and unpaid interest thereon,
shall be due and payable as follows:
(a) A
constant monthly payment equal to the amount of all accrued interest on the then
outstanding principal balance shall be due and payable on the earliest to occur
of (i) the first day of each month (for the immediately preceding month),
computed through the last calendar day of the preceding month, or (ii) January
2, 2010 (the “Maturity
Date”);
and
(b) Three
principal payments, each in the amount of Five Hundred Thousand and no/100
Dollars ($500,000.00), with the first such payment due and payable on January 1,
2008, the second such payment due and payable on January 1, 2009, the third such
payment due and payable on the Maturity Date; and
(c) The
balance of all unpaid principal and interest thereon and all other amounts owed
pursuant to this Note shall be due and payable on the Maturity
Date.
Issuers
shall make all payments hereunder in lawful money of the United States. Payments
received shall first be credited to expenses of collection and interest then
due, and the remainder credited to principal. Interest shall cease upon the
principal so credited. If Issuers make any payment of principal, interest or
other amounts upon the Indebtedness by check, draft, or other remittance, Holder
shall not be deemed to have received such payment until Holder actually receives
such instrument.
2. Calculation
of Interest.
Interest shall accrue on the outstanding principal balance at the end of each
day on which any amount is outstanding under this Note at the rate of twelve
percent (12%) (the “Interest
Rate”) per
annum, compounded monthly. Interest shall be calculated on a daily basis
(computed on the actual number of days elapsed over a year of 360 days),
commencing on January 6, 2005, and shall be based upon the outstanding principal
balance at the end of each day.
3. Optional
Prepayments.
(a) Issuers
may, at any time and from time to time, prepay this Note without penalty, in
whole or in part, upon not less than five (5) Business Days’ prior written
notice to the Holder (each, a “Prepayment
Notice”). Each
Prepayment Notice shall state the principal amount of the Note proposed to be
prepaid on a specified prepayment date (each, a “Prepayment
Date”) and
the amount of all accrued but unpaid interest thereon to the date of such
prepayment on the portion of the principal amount of the Note being
prepaid.
(b) On and
after any Prepayment Date (unless default shall be made by the Issuers in the
payment of the prepayment amount set forth in the Prepayment Notice), (x)
interest shall cease to accrue with respect to the principal amount of the Note
prepaid, (y) for all purposes under this Note and the other Investment
Documents, the outstanding principal amount due with respect to the Note shall
automatically be deemed reduced by the amount paid pursuant to the Prepayment
Notice, and (z) the principal payment obligation in Section
1(b) above
shall deemed to be restated so that each principal installment payment to be
paid from the Prepayment Date through to the Maturity Date shall equal an amount
that is the quotient of the then outstanding principal balance divided
by the
number of the then remaining principal installment payments.
(c) Any
prepayment of the Note shall include payment of the accrued and unpaid interest
on the prepaid portion of the Note.
4. Waiver. Payment
of principal and interest due under this Note shall be made without presentment
or demand. The Issuers and all others at any time liable directly or indirectly
(including, without limitation, the Issuers, any co-makers, endorsers, sureties
and guarantors, all of which are referred to herein as “Parties”),
severally waive presentment, demand and protest, notice of protest, demand, and
dishonor, and nonpayment of this Note, and all diligence in collection and agree
to pay all costs of collection when incurred, including reasonable attorneys’
fees, and to perform and comply with each of the covenants, conditions,
provisions, and agreements of the Issuers contained in every instrument now
evidencing the Indebtedness. No release by Holder of any security for payment of
the Indebtedness or any modification or restructuring in respect of any lien or
security interest held or at any time obtained or acquired by Holder for payment
of such Indebtedness shall operate to release, discharge, impair or alter the
liability of any Party liable at any time directly or indirectly for payment of
such Indebtedness.
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5. Renewal
and Modification. Issuers
further agree that the Indebtedness may be from time to time, extended, renewed,
modified, rearranged, or evidenced by one or more other notes or obligations in
substitution for this Note and upon and for such term or terms agreed to by RMI
and Holder in writing, and with or without notice to other Parties. Issuers
agree that upon and after such extension, renewal, modification, rearrangement,
substitution, or other change in form of the Indebtedness each Party shall
remain liable in respect of the Indebtedness so renewed, extended, modified,
rearranged, or otherwise evidenced in the same capacity and to the same extent
as prior thereto. No release or discharge (in whole or in part) of any Party
hereto by Holder shall in any manner impair, release, discharge, or alter the
liability of any other Party.
6. Events
of Default. Any
“Event of Default” (as defined in the Securities Purchase Agreement) shall
constitute an “Event
of Default” under
this Note. Upon the occurrence of any Event of Default (after giving effect to
all applicable notice and cure periods provided under the Securities Purchase
Agreement), all Indebtedness and all other amounts due and owing under this
Note, including all costs, fees, and expenses, including all reasonable
attorneys’ fees and litigation and other enforcement expenses, shall (at the
option of Holder) immediately become due and payable without demand and without
notice to any Issuer.
7. Rights
and Remedies. Upon
the occurrence, and during the continuation, of an Event of Default (a) Holder
shall have all rights, powers and remedies set forth in the Investment
Documents, as well as any and all rights and remedies available to it under any
applicable law or as otherwise provided at law or in equity; (b) Issuers shall
pay to Holder, in addition to the sums stated above, the costs of collection,
regardless of whether litigation is commenced, including reasonable attorneys’
fees; and (c) notwithstanding any other provision of this Note, during the
period of existence of such Event of Default, upon written notice from the
Holder, interest on the Indebtedness shall accrue and be paid, not at the
Interest Rate, but at the lesser of (i) the maximum lawful rate of interest
under any applicable law or regulation of any governmental authority having
jurisdiction, limiting the amount of interest that may be paid for the loan, use
or detention of money, and (ii) a default interest rate that is equal to (A)
from the date of the Event of Default and continuing thereafter for a period of
360 days, 14% per annum, and (B) thereafter 17% per annum.
Holder’s
rights and remedies under this Note and the other Investment Documents shall be
cumulative. Holder shall have all other rights and remedies not inconsistent
herewith as provided under the Uniform Commercial Code, by law, or in equity. No
exercise by Holder of one right or remedy shall be deemed an election, and no
waiver by Holder of any Event of Default shall be deemed a continuing waiver. No
delay by Holder shall constitute a waiver, election, or acquiescence by
it.
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8. Subordination.
Notwithstanding anything to the contrary in this Note, the payment of principal
and interest on this Note shall in certain instances be subordinate and junior
in right of payment to certain of the obligations owed by Issuers to Washington
Mutual Bank to the extent forth in that certain Intercreditor Agreement of even
date herewith by and among Washington Mutual Bank, Issuers, Freedom Financial,
Inc. and Holder.
9. Revival
and Reinstatement of Note. To the
extent that any payment to Holder or any payment or proceeds of any collateral
received by Holder in reduction of the Indebtedness is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, to Issuers (or Issuers’ successors) as a debtor in possession, or to
a receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then the portion of the Indebtedness intended to
have been satisfied by such payment or proceeds shall remain due and payable
hereunder, be evidenced by this Note, and shall continue in full force and
effect as if such payment or proceeds had never been received by Holder whether
or not this Note has been marked “paid” or otherwise canceled or satisfied or
has been delivered to Issuers, and in such event Issuers shall be immediately
obligated to return the original Note to Holder and any marking of “paid” or
other similar marking shall be of no force and effect.
10. Authority. Each
Issuer warrants and represents that the persons or officers who are executing
this Note and the other Investment Documents on behalf of such Issuer have full
right, power and authority to do so, and that this Note and the other Investment
Documents constitute valid and binding documents, enforceable against Issuers in
accordance with their terms, and that no other person, entity, or party is
required to sign, approve, or consent to, this Note.
11. Governing
Law; Consent to Forum. This
Note shall be governed by the laws of the State of Missouri without giving
effect to any choice of law rules thereof; provided,
however, that if
any of the collateral securing the Indebtedness shall be located in any
jurisdiction other than Missouri, the laws of such jurisdiction shall govern the
method, manner and procedure for foreclosure of Holder’s security interest, lien
or mortgage upon such collateral and the enforcement of Holder’s other remedies
in respect of such collateral to the extent that the laws of such jurisdiction
are different from or inconsistent with the laws of Missouri. AS PART OF THE
CONSIDERATION FOR NEW VALUE THIS DAY RECEIVED, EACH OF THE ISSUERS HEREBY
CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN XXXXXXX COUNTY,
MISSOURI OR FEDERAL COURT IN THE WESTERN DISTRICT OF MISSOURI, AND WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL AND SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. EACH OF THE ISSUERS
WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST
IT AS PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE. ISSUERS FURTHER AGREES NOT TO ASSERT AGAINST HOLDER
(EXCEPT BY WAY OF A DEFENSE OR COUNTERCLAIM IN A PROCEEDING INITIATED BY HOLDER)
ANY CLAIM OR OTHER ASSERTION OF LIABILITY WITH RESPECT TO THIS NOTE, THE OTHER
INVESTMENT DOCUMENTS, HOLDER’S CONDUCT OR OTHERWISE IN ANY JURISDICTION OTHER
THAN THE FOREGOING JURISDICTIONS.
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12. WAIVER
OF JURY TRIAL AND COUNTERCLAIMS. TO THE
FULLEST EXTENT PERMITTED BY LAW, AND AS SEPARATELY BARGAINED-FOR CONSIDERATION
TO HOLDER, EACH OF THE ISSUERS HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY (WHICH
HOLDER ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR IN ANY COUNTERCLAIM OF
ANY KIND ARISING OUT OF OR OTHERWISE RELATING TO THIS NOTE, THE INDEBTNEDSS, THE
COLLATERAL SECURING THE INDEBTEDNESS, OR THE HOLDER’S CONDUCT IN RESPECT OF ANY
OF THE FOREGOING.
13. Transfer
of Note. No
Issuer or Issuers may transfer any obligations hereunder without Holder’s prior
written consent, which may be withheld in Holder’s sole and absolute discretion
for any reason. Holder may assign all or any part of its interest in this
Note.
14. Further
Assurances. Issuers
agree to execute and deliver such further documents and to do such other acts as
Holder may request in order to further the effect and purposes of this Note and
the due performance of Issuers’ obligations hereunder.
15. Relationship
to Security Agreement. This
Note is the Note referred to in the Security Agreement (the “Security
Agreement”) dated
as of the date hereof by and between Issuers and Holder. This Note is entitled
to the benefits of, shall be construed in accordance with, and is secured by the
liens and security interests granted in the Security Agreement.
16. Miscellaneous.
(a) Time is
of the essence in this Note.
(b) Any
provision of this Note which is prohibited or unenforceable in any jurisdiction
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof in that jurisdiction or
affecting the validity or enforceability of such provision in any other
jurisdiction.
(c) This Note
and the other Investment Documents collectively: (i) constitute the final
expression of the agreement between Issuers and Holder concerning the
Indebtedness; (ii) contain the entire agreement between Issuers and Holder
respecting the matters set forth herein and in such other Investment Documents;
and (iii) may not be contradicted by evidence of any prior or contemporaneous
oral agreements or understandings between Issuers and Holder. Neither this Note
nor any of the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing executed by the party
against which enforcement of the termination, amendment, supplement, waiver or
modification is sought.
(d) If there
is a conflict between or among the terms, covenants, conditions or provisions of
this Note and the other Investment Documents, then any term, covenant, condition
and/or provision that Holder may elect to enforce from time to time so as to
enlarge the interest of Holder in its security for the Indebtedness, afford
Holder the maximum financial benefits or security for the Indebtedness, and/or
provide Holder the maximum assurance of payment of the Indebtedness and the
Indebtedness in full, shall control. EACH OF THE ISSUERS ACKNOWLEDGES AND AGREES
THAT IT HAS BEEN PROVIDED WITH SUFFICIENT AND NECESSARY TIME AND OPPORTUNITY TO
REVIEW THE TERMS OF THIS NOTE AND EACH OF THE INVESTMENT DOCUMENTS WITH ANY AND
ALL COUNSEL IT DEEMS APPROPRIATE, AND THAT NO INFERENCE IN FAVOR OF, OR AGAINST,
HOLDER OR ISSUERS SHALL BE DRAWN FROM THE FACT THAT EITHER SUCH PARTY HAS
DRAFTED ANY PORTION OF THIS NOTE OR ANY OF THE INVESTMENT
DOCUMENTS.
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(e)
The
following statement is given pursuant to Mo. Rev. Stat. § 432.045: “ORAL
AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FOREBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT YOU (ISSUERS) AND US (HOLDER) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.”
(f) If any
one or more of the covenants, agreements, terms, or provisions contained in this
Note shall be invalid, illegal, or unenforceable in any respect, the validity of
the remaining covenants, agreements, terms, or provisions contained herein shall
be in no way affected, prejudiced, limited, or impaired thereby.
(g) The terms
“include”, “including” and similar terms shall be construed as if followed by
the phrase “without being limited to.” The term “or” has, except where otherwise
indicated, the inclusive meaning represented by the phrase “and/or.” Words of
masculine, feminine or neuter gender shall mean and include the correlative
words of the other genders, and words importing the singular number shall mean
and include the plural number, and vice versa. All article, section, schedule,
and exhibit captions are used for convenient reference only and in no way
define, limit or describe the scope or intent of, or in any way affect, any such
article, section, schedule, or exhibit. Unless the context of this Note clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural. Any reference in this Note or in the Investment
Documents to this Note or to any of the Investment Documents shall include all
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, and supplements thereto and thereof, as applicable.
An Event of Default shall “continue” or be “continuing” until such Event of
Default has been waived in writing by Holder or completely cured in accordance
with the terms of the applicable Investment Documents.
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IN
WITNESS WHEREOF, the
parties hereto have executed and delivered this 12% Secured Note on the date
first written above.
| ISSUERS: | IC MARKETING, INC.,
a
Nevada corporation
By:
_______________________________________
Name:
_____________________________________
Title:
______________________________________
AMERICAN
CONSUMER PUBLISHING ASSOCIATION, INC.,
an
Oregon corporation
By:
_______________________________________
Name:
_____________________________________
Title:
______________________________________
RAYBOR
MANAGEMENT, INC.,
a
Delaware corporation
By:
_______________________________________
Name:
_____________________________________
Title:
______________________________________
BACK
2 BACK’S, INC.,
an
Oregon corporation
By:
_______________________________________
Name:
_____________________________________
Title:
______________________________________ |
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