October 10, 2006
/ Borrower Promise to
Tube Media Corp., a Delaware corporation
address is 1451
W. Cypress Creek Rd., Suite 300, FL 33309 (“Borrower”),
promises to pay to Dr.
address is 21875
Boca Raton, Florida 33428,
principal sum of $300,000.00,
annual interest thereon calculated in accordance with the terms and provisions
provided below. All sums owing under this Note are payable in lawful money
the United States of America.
shall accrued on this Note be payable at a fixed annual rate of 10.0%, until
such time as this Note is paid in full.
amounts required to be paid under Lender’s Note shall be payable at Lender’s
office located at 21875
Boca Raton, Florida 33428,
another place as Lender, from time to time, may designate in
calculations shall be based on a 360-day year and charged on the basis of actual
entire unpaid principal balance, together with all accrued interest shall be
and payable in full on the Maturity Date (as defined hereunder).
entire principal balance of this Note, together with all accrued and unpaid
interest and fees, shall be due and payable on October 10, 2007 (“Maturity
Date”), unless otherwise prepaid in accordance with the terms of this
may prepay the whole or any portion of this Note on any date, upon five days’
notice to Lender. Lender shall be entitled to receive repayment in full of
Borrower’s obligations hereunder out of the funds of Borrower within thirty (30)
days of the closing of any subsequent financing of Borrower (whether completed
as a debt or equity financing) resulting in gross proceeds to Borrower equal
or greater than $5,000,000.
required payment, including the final payment due on the maturity date, is
paid within 15 days from and including the date upon which it was due (whether
by acceleration or otherwise), then, in each such event, all past due amounts
shall be subject to a late penalty of five (.05) cents on every dollar owed
“late penalty”). This late penalty shall be in addition to any other interest
due as provided for in Paragraph 2 and in addition to all other rights and
remedies provided herein or by law for the benefit of the holder on a default.
The acceptance of any payment by the holder of the Note shall not act to
restrict the holder at all in exercising any other rights under the Note or
law, to waive or release Borrower from any obligations contained herein, or
extend the time for payments due under this Note.
Borrower fails to pay principal and/or interest on the date on which it falls
due or to perform any of the agreements, conditions, covenants, provisions,
stipulations contained in this Note, then Lender, at its option and without
notice to Borrower, may declare immediately due and payable the entire unpaid
balance of principal with interest from the date of default at the rate of
per year and all other sums due by Borrower hereunder anything herein to the
contrary notwithstanding. Payment of this sum may be enforced and recovered
whole or in part at any time by one or more of the remedies provided to Lender
in this Note. In that case, Lender also may recover all costs in connection
suit, a reasonable attorney’s fee for collection, and interest on any judgment
obtained by Lender at the rate of 12% per year.
remedies of Lender and the warrants provided in this Note shall be cumulative
and concurrent, and they may be pursued singly, successively, or together at
sole discretion of Lender. They may be exercised as often as occasion shall
occur, and failing to exercise one shall in no event be construed as a waiver
release of it.
Fees and Costs
shall pay all attorneys fees in connection with the preparation of this
engages any attorney to enforce or construe any provision of this Note, or
consequence of any default whether or not any legal action is filed, Borrower
immediately shall pay on demand all reasonable attorneys’ fees and other
Lender’s costs, together with interest from the date of demand until paid at the
highest rate of interest then applicable to the unpaid principal, as if the
unpaid attorneys’ fees and costs had been added to the principal.
hereby waives and releases all benefit that might accrue to Borrower by virtue
of any present or future laws of exemption with regard to real or personal
property or any part of the proceeds arising from any sale of that property,
from attachment, levy, or sale under execution, or providing for any stay of
execution, exemption from civil process, or extension of time for payment.
Borrower agrees that any real estate that may be levied on under a judgment
obtained by virtue hereof, on any writ of execution issued thereon, may be
on any writ in whole or in part in any order desired by Lender.
and all endorsers, sureties, and guarantors jointly and severally waive
presentment for payment, demand, notice of demand, notice of nonpayment or
dishonor, protest, notice of protest of this Note, and all other notices in
connection with the delivery, acceptance, performance, default, or enforcement
of the payment of this Note. They agree that each shall have unconditional
liability without regard to the liability of any other party and that they
not be affected in any manner by any indulgence, extension of time, renewal,
waiver, or modification granted or consented to by Lender. Borrower and all
endorsers, sureties, and guarantors consent to any and all extensions of time,
renewals, waivers, or modifications that may be granted by Lender with respect
to the payment or other provisions of this Note, and to the release of any
collateral or any part thereof, with or without substitution, and they agree
that additional borrowers, endorsers, guarantors, or sureties may become parties
hereto without notice to them or affecting their liability
shall not be considered by any act of omission or commission to have waived
of its rights or remedies hereunder, unless such waiver is in writing and signed
by Lender, and then only to the extent specifically set forth in writing. A
waiver on one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy to a subsequent event.
hereby waives all past defaults and rights of any kind that Lender has or may
have had arising from the past defaults including all fees, expenses, penalties
and charges related to such defaults with respect to or in connection with
promissory notes executed by the Borrower in Lender’s favor as follows,: (i)
dated January 14, 2005, in the aggregate principal amount
amended by a letter agreement dated April 11, 2006;
(ii) dated August 31, 2005, in the aggregate principal amount of $500,000.00,
with a current outstanding principal balance of $200,000.00 (together, the
Lender hereby agrees to execute a Satisfaction of Obligations relating to the
Former Notes, in the forms attached hereto as Exhibit A and Exhibit B,
respectively, and such Former Notes are canceled in full and shall be considered
void ab initio with neither party having any liability or obligation hereafter
to the other.
hereby forgives and releases the Borrower from all consulting fees, and waives
payment of any and all other past due compensation, fees, expenses and amounts
of any kind that may be owed to Lender now or in the future or rights that
Lender has or may have with respect to or in connection with that certain
consulting agreement entered into on August 31, 2005, between the Borrower
DKK-RK Enterprises, Inc., a corporate entity owned by, controlled by, or under
the control of Lender, attached hereto as Exhibit C, and any and all other
consulting arrangements or agreements, whether written or verbal, between Lender
and the Borrower.
hereby remises, releases, and forever discharges the Borrower, its affiliates,
subsidiaries, officers, directors, employees and agents of and from all, and
manner of, actions, causes of action, suits, proceedings, debts, dues,
contracts, judgments, damages, claims, and demands whatsoever in law or equity,
which the Lender ever had, now has, or which its successors or assigns,
hereafter can, shall, or may have for or by reason of any matter, cause, or
thing whatsoever, arising from the Lender’s participation as either a lender or
shareholder of Borrower prior to the date hereof.
notices required under or in connection with this Note shall be delivered or
sent by certified or registered mail, return receipt requested, postage prepaid,
to the addresses set forth in Paragraph 1 hereof, or to another address that
party may designate from time to time by notice to the others in the manner
forth herein. All notices shall be considered to have been given or made either
at the time of delivery thereof to an officer or employee or on the third
business day following the time of mailing in the aforesaid manner.
shall pay the cost of any revenue tax or other stamps now or hereafter required
by law at any time to be affixed to this Note.
Partnership or Joint
contained in this Note or elsewhere shall be construed as creating a partnership
or joint venture between Lender and Borrower or between Lender and any other
person or as causing the holder of the Note to be responsible in any way for
debts or obligations of Borrower or any other person.
anything contained herein to the contrary, the holder hereof shall never be
entitled to collect or apply as interest on this obligation any amount in excess
of the maximum rate of interest permitted to be charged by applicable law.
the holder of this Note ever collects or applies as interest any such excess,
the excess amount shall be applied to reduce the principal debt; and if the
principal debt is paid in full, any remaining excess shall be paid forthwith
Borrower. In determining whether the interest paid or payable in any specific
case exceeds the highest lawful rate, the holder and Borrower shall to the
maximum extent permitted under applicable law (a) characterize any non-principal
payment as an expense, fee, or premium rather than as interest; (b) exclude
voluntary prepayments and the effects of these; and (c) spread the total amount
of interest throughout the entire contemplated term of the obligation so that
the interest rate is uniform throughout the term. Nothing in this paragraph
shall be considered to increase the total dollar amount of interest payable
under this Note.
of the Persons Under this
than one person signs this Note, each person is fully and personally obligated
to keep all of the promises made in this Note, including the promise to pay
full amount owed. Any person who is a guarantor, surety or endorser of this
is also obligated to do these things. Any person who takes over these
obligations, including the obligations of a guarantor, surety or endorser of
this Note is also obligated to keep all of the promises made in this Note.
Note Holder may enforce its rights under this Note against each person
individually or against all of us together. This means that any one of us may
required to pay all of the amounts owed under this Note.
event this Note is pledged or collaterally assigned by Lender at any time or
from time to time before the maturity date, neither Borrower nor Lender shall
permit any modification of this Note without the consent of the
Note the singular shall include the plural and the masculine shall include
feminine and neuter gender, and vice versa, if the context so
at the beginning of each numbered paragraph of this Note are intended solely
convenience of reference and are not to be construed as being a part of the
of the essence with respect to every provision of this Note.
shall be construed and enforced in accordance with the laws of the State of
Florida, except to the extent that federal laws preempt the laws of the State
Borrower have executed this Promissory Note on the date set forth