Exhibit 10.4
THIS PROMISSORY NOTE AND THE SECURITIES TO BE ISSUED UPON CONVERSION
HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD UNLESS THIS
PROMISSORY NOTE OR THE SECURITIES TO BE ISSUED UPON CONVERSION HEREOF, AS THE
CASE MAY BE, ARE REGISTERED UNDER THE SECURITIES ACT, OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.SECURED PROMISSORY
NOTE
July 12, 0000
Xxxxxxx, Xxxxxxxxxx
For value received, CREATIVE PRODUCTS INTERNATIONAL, INC., a Delaware
corporation (the "Borrower") with offices at 3317 3''d Ave. S, Xxxxxxx, XX
00000, hereby promises to pay to the order of Xxxxx Xxxxxxxx ("Lender") at 0000
Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000 or at such other place as Lender may
specify from time to time, in lawful money of the United States in immediately
available funds the aggregate unpaid principal amount of all advances (the
"Advances") made by Lender. All Advances shall be payable on demand pursuant to
a notice (a "Demand Notice") specifying the date on which repayment is to be
made.
The outstanding principal balance of each Advance shall bear interest,
for each day, at a rate per annum equal to 8% per annum. All interest hereunder
shall be computed on the basis of a 365-day year for the actual number of days
involved and shall be payable on the date specified in Lender's Demand Notice.
Lender is hereby authorized to record on the Schedule annexed hereto,
and any continuation sheets which Lender may attach hereto, (i) the date of each
Advance made by Lender to Borrower and (ii) the date and amount of each payment
or prepayment of the principal of any such Advance. The entries made on such
Schedule shall be prima facie evidence of the existence and amounts of the
obligations recorded thereon, provided that the failure to so record or any
error therein shall not in any manner affect the obligation of Borrower to repay
the Advances.
Advances shall be made at Lender's sole discretion and nothing herein
shall be construed to constitute an obligation on the part of Lender to make any
Advances.
Payment of all sums due hereunder is secured by the Collateral pursuant
to and in accordance with the terms of that certain Security Agreement of even
date herewith (the "Security Agreement") between Lender and Borrower.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Security Agreement.
Borrower acknowledges that the Advances are payable on demand and
payment thereof may be demanded by Lender from Borrower at any time for any
reason in the sole and absolute discretion of Lender.
Borrower hereby waives presentment, demand, notice of dishonor,
protest, notice of protest and all other demands, protests and notices in
connection with the execution, delivery, performance, collection and enforcement
of this Note.
All Advances, together with all accrued interest thereon, shall become
immediately and automatically due and payable, without demand, presentment,
protest or notice of any kind, upon the commencement by or against Borrower of a
case or proceeding under any bankruptcy, insolvency or other law relating to the
relief of debtors, the readjustment, composition or extension of indebtedness or
reorganization or liquidation (each, an "Event of Default").
Notwithstanding the provisions of the foregoing paragraph, if, at any
time after April 9, 2001, Borrower is unable to repay the then outstanding
Advances plus accrued interest upon demand therefore by Lender, Lender at its
sole option, may demand payment of the Advances to be made by delivery to Lender
of such number of shares of the Company's Common Stock, par value $Al, as shall
be determined by dividing the sum of the unpaid Advances plus accrued interest
plus the Commencement Fee to be paid by $0.08.
Borrower hereby agrees to pay all reasonable costs and expenses
incurred by Lender incidental to or in any way relating to Lender's enforcement
of the obligations of Borrower hereunder or the protection of Lender's rights
against Borrower hereunder, including, without limitation, reasonable attorneys'
fees and expenses, whether or not litigation is commenced.
Within a reasonable period of time after Lender's request, Borrower
agrees to furnish to Lender such information and to permit Lender to inspect and
make copies of its books and records, as Lender shall reasonably request from
time to time.
Borrower hereby authorizes Lender to date this note and to complete any
blank space herein according to the terms upon which Advances were granted.
No failure on the part of Lender to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Lender of any right, remedy
or power hereunder preclude any other or future exercise thereof or the exercise
of any other right, remedy or power.
2
Borrower shall not have the right to assign its rights or obligations
hereunder or any interest herein (and any such attempted assignment shall be
void), except with the prior written consent of Lender. No failure or delay of
the Lender in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. Neither this Note nor any provision hereof may be waived,
amended or modified, nor shall any departure therefrom be consented to, except
pursuant to a written agreement entered into between Borrower and Lender with
respect to which such waiver, amendment, modification or consent is to apply.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF WASHINGTON.
All communications and notices hereunder shall be in writing and given
as provided in Section 14 of the Security Agreement.
Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any Washington State court or
Federal court of the United States of America sitting in that state, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Note or the Security Agreement, or for recognition or
enforcement of any judgment, and Borrower hereby irrevocably and unconditionally
agrees that, to the extent permitted by applicable law, all claims in respect of
any such action or proceeding may be heard and determined in such Washington
State court or, to the extent permitted by applicable law, in such Federal
court. Borrower, and by accepting this Note, Lender, agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Note shall affect any right that Lender may
otherwise have to bring any action or proceeding relating to this Note or the
Security Agreement against Borrower, or any of its property, in the courts of
any jurisdiction.
Borrower, and by accepting this Note, Lender, hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Note or the
Security Agreement in any court referred to in the preceding paragraph hereof.
Borrower, and by accepting this Note, Lender, hereby irrevocably waives, to the
fullest extent permitted by applicable law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
3
Borrower, and by accepting this Note, Leader, irrevocably consents to
service of process in the manner provided herein. Nothing herein will affect the
right of Borrower to serve process in any other manner permitted by 1nw.
BORROWER, AND BY ACCEPTING THIS NOTE, LENDER, HEREBY WAIVES. TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS NOTE. THE BORROWER (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER. AND (B) ACKNOWLEDGES THAT SUCH, LENDER HAS BEEN
INDUCED TO ACCEPT THIS NOTE AND ENTER INTO THE LOAN DOCUMENTS TO WHICH IT IS A
PARTY BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
CREATIVE PRODUCTS INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxxx
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Title: Board Member
