Contract
THIS
NOTE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
No.
1 U.S.
$565,000
Original
Issue Date: July __. 2009
Holder: Precursor
Management Inc.
Address: Precursor
Management, Inc.
Suite
2702-03
Goldlion
Digital Network Center
000 Xx Xx
Xxxx Xxxx
Xxxx Xx,
Guangzhou
Guangdong
Province
China
510620
SERIES
2009 SECURED NOTE DUE SEPTEMBER 30, 2009
THIS
Note, in the principal amount of Five Hundred and Sixty Five Thousand and 00/100
Dollars ($565,000.00), evidencing a loan (the "Loan") made on July __. 2009 (the
"Loan Origination
Date"), is a duly authorized Note of Dongguan Chditn Printing Co., Ltd.,
a Chinese corporation with offices at Xx. 0 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx’xx
Xxxx, Xxxxxxxx, Xxxxxxxxx Xxxxxxxx, P.R. China (the "Maker"),
individually designated as the Note, as the case may be (the "Note"), due not
later than September 30, 2009 ("Maturity Date"), in
an aggregate face amount of Five Hundred and Sixty Five Thousand and 00/100
Dollars ($565,000.00).
FOR VALUE
RECEIVED, the Maker promises to pay to the Holder or registered assigns, the
principal sum of Five Hundred and Sixty Five Thousand and 00/100 Dollars
($565,000.00) if paid on or prior to three hundred and sixty five (365) day
anniversary (the "Maturity Date") of
the Loan Origination Date, hereof; upon the occurrence of an Event of Default,
the amount of principal due hereunder shall conclusively be Five Hundred and
Sixty Five Thousand and 00/100 Dollars ($565,000.00), and all amounts due
hereunder shall be immediately due and payable, together with a default fee
equal to ten percent (10%) of the Maturity Amount, and any amounts not so paid
shall bear interest at the rate of 18% per annum from the of such default
through and including the date of payment. The principal of, and interest on,
this Note are payable in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts, at the address of the Holder last appearing on the Note
Register.
This Note
is subject to the following additional provisions:
Section
1. Representations
and Warranties of the Borrower. The Borrower represents and warrants to
the Holder, as of the date hereof as follows:
(a) Authorization
of Agreement. The Borrower, if not a natural person, is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate, partnership or
other applicable power and authority to enter into and to consummate the
transactions contemplated by this Note and otherwise to carry out its
obligations hereunder, and the execution, delivery and performance by the
Borrower of this Note and all other documents delivered in connection herewith
(the "Transaction
Documents") have been duly authorized by all necessary corporate or
similar action on the part of the Borrower. Each of the Transaction Agreements,
when executed and delivered by the Borrower, will constitute a valid and legally
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other
laws of general application affecting enforcement of creditors' rights
generally, (b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, or (c) to the
extent the indemnification provisions contained herein may be limited by federal
or state securities laws.
(b) No
Conflicts; Advice. Neither the execution and delivery of the Transaction
Documents, nor the consummation of the transactions contemplated thereby, does
or will violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge or other restriction of any government,
governmental agency, or court to which the Borrower is subject or any provision
of its organizational documents or other similar governing instruments, or
conflict with, violate or constitute a default under any agreement, credit
facility, debt or other instrument or understanding to which the Borrower is a
party. The Borrower has consulted such legal, tax and investment advisors as it,
in its sole discretion, has deemed necessary or appropriate in connection with
its entering into the Note and the other Transaction Documents and consummating
the transactions contemplated hereby and thereby.
(c) No
Litigation. There is no action, suit, proceeding, judgment, claim or
investigation pending, or to the knowledge of the Borrower, threatened against
the Borrower which could reasonably be expected in any manner to challenge or
seek to prevent, enjoin, alter or materially delay any of the transactions
contemplated by this Note or the other documents delivered in connection
herewith.
(d) Consents.
No authorization, consent, approval or other order of, or declaration to
or filing with, any governmental agency or body or other person is required for
the valid authorization, execution, delivery and performance by the Borrower of
the Note and the other documents delivered in connection herewith and the
consummation of the transactions contemplated hereby and thereby.
(e) Bankruptcy.
The Borrower is not under the jurisdiction of a court in a Title 11 or
similar case (within the meaning of Bankruptcy Code Section 368(a)(3)(A) (or
related provisions)) or involved in any insolvency proceeding or
reorganization.
(f) Purpose
of Loan, Means of Repayment. The Borrower intends to use proceeds for the
effectuation of a share exchange between the Borrower and Décor Products
International, Inc. The Borrower has a reasonable, good-faith belief in its
ability to repay the Loan evidenced by this Note as and when the same may become
due and payable. The basis for such belief is set forth in Schedule A attached
hereto, and the Borrower will have sufficient unencumbered production revenues
from their operations in China to enable such repayment to be made, as more
fully set forth in Schedule A attached
hereto.
Section
2. Exchangeability
and Transferability. This Note is exchangeable for an equal aggregate
principal amount of Notes of different authorized denominations, as requested by
the Holder surrendering the same, but shall not be issuable in denominations of
less than integral multiples of Twenty Thousand Dollars ($20,000) unless such
amount represents the full principal balance of Notes outstanding to such
Holder. No service charge will be made for such registration of transfer or
exchange. The Holder, by acceptance hereof, agrees to give written notice to the
Maker before transferring this Note; such notice will describe briefly the
proposed transfer and will give the Maker the name, address, and tax
identification number of the proposed transferee, and will further provide the
Maker with an opinion of the Holder's counsel that such transfer can be
accomplished in accordance with federal and applicable state securities laws
(unless such transaction is permitted by the plan of distribution in an
effective Registration Statement). Promptly upon receiving such written notice,
the Maker shall present copies thereof to the Maker's counsel.
Section
3. Plan of
Repayment.
The Maker intends to repay this Note through application of proceeds that
it expects to receive as set forth in Schedule A to this
Note.
Section
4. Covenants. The Maker
covenants and agrees that, so long as any amount is due and owing under the
Note, it shall not:
(a) Fail to
make any payment of the principal of interest on, or other obligations in
respect of, this Note, free of any claim of subordination, as and when the same
shall become due and payable (whether on the Maturity Date or by acceleration or
otherwise), for ten (10) days after the same shall be due and
payable;
(b) Fail to
observe or perform any other covenant, agreement or warranty contained in,
or
otherwise
commit, any breach of this Note;
(c) Suffer to
have the guarantor (the "Guarantor") under
the guarantee (the "Guarantee") or the
pledgor (the "Pledgor") under the
stock pledge agreement (the "Stock Pledge
Agreement") entered into contemporaneously herewith and of even date
herewith fail to observe or perform any covenant, agreement or warranty
contained therein, or otherwise commit any breach thereof (this Note, the
Guaranty, the Stock Pledge Agreement and all other documents delivered
contemporaneously and in connection herewith collectively are referred to as the
"Loan Documents");
(d) Commence
or suffer to have the Guarantor or the Pledgor commence a voluntary case under
the United States Bankruptcy Code or insolvency laws as now or hereafter in
effect or any successor thereto (the "Bankruptcy Code"); or suffer to have an
involuntary case commenced against it, the Guarantor or the Pledgor under the
Bankruptcy Code in which the petition is not controverted within thirty (30
days), or is not dismissed within sixty (60) days, after commencement of such
involuntary case; or suffer to have a "custodian" (as defined in the Bankruptcy
Code) appointed for, or take charge of, all or any substantial part of the
property of the Maker, the Guarantor or the Pledgor, or commence any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Maker, the
Guarantor or the Pledgor, or suffer to have commenced against it, the Guarantor
or the Pledgor any such proceeding which remains undismissed for a period of
sixty (60) days; or be, or suffer to have the Guarantor or the Pledgor be,
adjudicated insolvent or bankrupt; or suffer to have any order of relief or
other order approving any such case or proceeding entered; or suffer to have any
appointment of any custodian or the like for any thereof or any substantial part
of its property or the property of the Guarantor or the Pledgor which continues
undischarged or unstayed for a period of sixty (60) days; or make, or suffer to
have the Guarantor or the Pledgor make, a general assignment for the benefit of
creditors; or fail to pay, or state that it is unable to pay, its debts
generally as they become due; call, or suffer to have the Guarantor or the
Pledgor call, a
meeting of all of its respective creditors with a view to arranging a
composition or adjustment of its debts; or by any act or failure to act
indicate, or suffer to have the Guarantor or the Pledgor indicate, its consent
to, approval of or acquiescence in any of the foregoing; or take any corporate
or other action for the purpose of effecting any of the foregoing;
(e) Default,
or suffer to have the Guarantor or the Pledgor default, in any of its respective
obligations under any mortgage, credit agreement or other facility, indenture,
agreement or other instrument under which there may be issued, or by which there
may be secured or evidenced any indebtedness thereof in an amount exceeding
thirty-seven thousand five hundred dollars ($37,500.00), whether such
indebtedness now exists or shall hereafter be created and such default shall
result in such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise become due and payable;
(f) Be, or
suffer to have the Guarantor or the Pledgor be, a party to any Change of Control
Transaction (as defined below), or sell or dispose of all or in excess of
forty-nine (49%) percent of its respective assets (based on book value
calculation as reflected in the its most recent financial statements) in one or
more transactions (whether or not such sale would constitute a Change of Control
Transaction);
(g) Suffer to
have the Common Stock to be suspended or delisted from trading for in excess of
three (3) Trading Days;
(h) Suffer to
have the average daily trading volume of the Common Stock, during
any consecutive ten (10) trading-day period, be less than five
thousand ($5,000) dollars in value;
(i) Suffer a
determination by the U.S. Securities and Exchange Commission or Financial
Industry Regulatory Authority, or any applicable state regulatory authority,
that it, the Guarantor or the Pledgor has violated applicable Securities
Laws;
(j) Fail, or
suffer to have the Pledgor or the Guarantor fail, to file a Form
10-K, Form 10-Q or a Form 8-K when due;
Enter, or
suffer to have the Pledgor or the Guarantor enter, into a transaction or series
of transactions that would violate the "Twenty Percent Rule" if the Common Stock
were traded on the NASDAQ market;
(k) Suffer to
have the value of the shares of Common Stock that are pledged to secure the
obligations due under the Notes pursuant to the Stock Pledge Agreement (the
"Collateral Shares")
be equal to not more than four (4) times the Maturity Amount on any
trading day during the term of this Note; provided, that for purposes of
measuring compliance with this covenant, the value of the Collateral Shares
shall be deemed to be the average of the Volume-Weighted Average Price (the
"VWAP") of Common Stock, as reported by Xxxxxxxxx, L.P., for the previous five
(5) trading days;
(l) Suffer to
have an action, suit or proceeding commenced against it, the Guarantor or the
Pledgor seeking damages in an amount exceeding thirty-seven thousand five
hundred dollars ($37,500); or
(m) Make any
representation or warranty that is not true and correct in all material respects
as of the date of this Note, except for representations and warranties that are
expressly made as of a particular date, which shall be true and correct in all
material respects as of such date.
Section
5. Events of
Default. "Event
of Default" wherever used herein, means the breach of any covenant hereof
(whatever the reason and whether it shall be voluntary or involuntary or
effected by operation of law or pursuant to any judgment, decree or order of any
court, or any order, rule or regulation of any administrative or governmental
body). Upon the occurrence of an Event of Default, which Event of Default is not
cured within ten (10) days after its occurrence, the sum of Five Hundred and
Sixty Five Thousand and 00/100 Dollars ($565,000.00) shall be immediately due
and payable to the Holder, together with a default penalty in the amount of
Thirty-five Thousand Dollars ($35,000), and thereupon default interest shall
begin to accrue at the annual rate of eighteen (18%) percent per annum and the
Holder shall be entitled to all remedies under law and as set forth in the
Guarantee or the Pledge Agreement.
Section
6. Interest
Rate Limitation. The parties intend to conform strictly to the applicable
usury laws in effect from time to time during the term of the Loan. Accordingly,
if any transaction contemplated hereby would be usurious under such laws, then
notwithstanding any other provision hereof: (i) the aggregate of all interest
that is contracted for, charged, or received under this Note or under any other
Document shall not exceed the maximum amount of interest allowed by applicable
law (the "Highest
Lawful Rate"), and any excess shall be promptly credited to the Maker by
the Holder (or, to the extent that such consideration shall have been paid, such
excess shall be promptly refunded to the Maker by the Holder); (ii) neither the
Maker nor any other person now or hereafter liable hereunder shall be obligated
to pay the amount of such interest to the extent that it is in excess of the
Highest Lawful Rate; and (iii) the effective rate of interest shall be reduced
to the Highest Lawful Rate. All sums paid, or agreed to be paid, to the Holder
for the use, forbearance, and detention of the debt of the Maker to the Holder
shall, to the extent permitted by applicable law, be allocated throughout the
full term of the Note until payment is made in full so that the actual rate of
interest does not exceed the Highest Lawful Rate in effect at any particular
time during the full term thereof. If the total amount of interest paid or
accrued pursuant to this Note under the foregoing provisions is less than the
total amount of interest that would have accrued if a varying rate per annum
equal to the interest rate under the Note had been in effect, then the Maker
agrees to pay to the Holder an amount equal to the difference between (x) the
lesser of (A) the amount of interest that would have accrued if the Highest
Lawful Rate had at all times been in effect, or (B) the amount of interest that
would have accrued if a varying rate per annum equal to the interest rate under
this Note had at all times been in effect, and (y) the amount of interest
accrued in accordance with the other provisions of this Note.
Section
7. Prepayment/Extension.
(a) The Maker
shall have the right to prepay this Note in whole or in part prior to the
Maturity Date.
(b) The Maker
shall give at least ten (10) Days, but not more than fifteen (15) Days, written
notice of any intention to prepay this Note prior to the Maturity Date or any
extension thereof to the Holder, which notice shall specify the "Prepayment
Date".
Section
8. Definitions. For the purposes hereof,
the following terms shall have the following meanings:
"Business Day" means
any day except Saturday, Sunday and any day which shall be a legal holiday or a
day on which banking institutions in the State of New York are authorized or
required by law or other government action to close.
"Change of Control
Transaction" means the occurrence of any of (i) an acquisition after the
date hereof by an individual or legal entity or "group" (as described in Rule
13d-5(b)(1) promulgated under the Exchange Act) of in excess of 49% of the
voting securities of a person, coupled with a replacement of more than one-half
of the members of such person's board of directors which is not approved by
those individuals who are members of the board of directors on the date hereof
in one or a series of related transactions, or (ii) the merger of such person
with or into another entity, consolidation or sale of all or substantially all
of the assets of such person in one or a series of related transactions, unless
following such transaction, the holders of such person's securities continue to
hold at least 40% of such securities following such transaction. The execution
by such person of an agreement to which such person is a party or by which it is
bound providing for any of the events set forth above in (i) or (ii) does not
constitute the occurrence of the event until after the event in fact
occurs.
"Common Stock" means
the Common Stock of Decor Products International, Inc., a Florida
corporation.
Section
9. Except
as expressly provided herein, no provision of this Note shall alter or impair
the obligation of the Maker, which is absolute and unconditional, to pay the
principal of interest and liquidated damages (if any) on, this Note at the time,
place, and rate, and in the coin or currency, herein prescribed. This Note is a
direct obligation of the Maker.
Section
10. If
this Note shall be mutilated, lost, stolen or destroyed, the Maker shall execute
and deliver, in exchange and substitution for and upon cancellation of a
mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed
Note, a new Note for the principal amount of this Note so mutilated, lost,
stolen or destroyed but only upon receipt of evidence of such loss, theft or
destruction of such Note, and of the ownership hereof, and indemnity, if
requested, all reasonably satisfactory to the Maker.
Section
11. Choice of Law and Venue;
Submission to Jurisdiction; Service of Process.
(a) THE
VALIDITY OF THIS NOTE , ITS CONSTRUCTION, INTERPRETATION AND ENFORCEMENT, AND
THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REFERENCE
TO THE CHOICE OF LAW PRINCIPLES THEREOF). THE PARTIES AGREE THAT ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS NOTE SHALL BE TRIED AND LITIGATED
ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF BROWARD, STATE OF
FLORIDA OR, AT THE SOLE OPTION OF HOLDER, IN ANY OTHER COURT IN WHICH HOLDER
SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY.
(b) THE MAKER
HEREBY SUBMITS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
(c) THE MAKER
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT, OR OTHER PROCESS
ISSUED IN ANY ACTION OR PROCEEDING AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINT, OR OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO MAKER.
(d) NOTHING
IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF THE HOLDER
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE
ENFORCEMENT BY HOLDER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE
TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER
APPROPRIATE FORUM OR JURISDICTION.
(e) TO
THE EXTENT DETERMINED BY SUCH COURT, THE MAKER SHALL REIMBURSE THE HOLDER FOR
ANY REASONABLE LEGAL FEES AND DISBURSEMENTS INCURRED BY THE HOLDER IN
ENFORCEMENT OF OR PROTECTION OF ANY OF ITS RIGHTS UNDER ANY OF THIS
NOTE.
Section
12. Any
waiver by the Maker or the Holder of a breach of any provision of this Note
shall not operate as or be construed to be a waiver of any other breach of such
provision or of any breach of any other provision of this Note. The failure of
the Maker or the Holder to insist upon strict adherence to any term of this Note
on one or more occasions shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Note. Any waiver must be in writing.
Section
13. If
any provision of this Note is invalid, illegal or unenforceable, the balance of
this Note shall remain in effect, and if any provision is inapplicable to any
person or circumstance, it shall nevertheless remain applicable to all other
persons and circumstances.
Section
14. Whenever
any payment or other obligation hereunder shall be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day
(or, if such next succeeding Business Day falls in the next calendar month, the
preceding Business Day in the appropriate calendar month).
Section
15. Security.
The obligation of the Maker for payment of principal, interest and all
other sums hereunder, in the event of a default and failure of the Maker to
perform hereunder, is secured by (i) a Guarantee of the Guarantor, and (ii) the
pledge of certain securities (the "Pledged Shares") by
the Guarantor as Pledgor under the terms and conditions of a Stock Pledge
Agreement.
Section 16.Waiver of Jury
Trial.
THE MAKER
HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS NO IE. THE MAKER REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER AND KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Maker
has caused this instrument to be duly executed by an officer duly authorized for
such purpose, as of the date first above indicated.
DONGGUAN
CHDITN PRINTING CO., LTD.
By: /s/ Xxx Xxxxxxxx
Name: Xxx
Xxxxxxxx
Title: President
Attest:
By:
SCHEDULE
A
PLAN OF
REPAYMENT
The loan
will be repaid out of revenues from the production and assets owned by Dongguan
Chditn Printing Co., Ltd. as per the following payment terms:
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1.
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A
cash payment of $565,000 shall be made on or before the 365 day
anniversary of the Note.
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