Delaware corporation (the “Company”),
promises to pay to CSI
Business Finance, Inc.,
Florida corporation (“Lender”
together with the Company, the “Parties”
each a “Party”),
principal sum of Three
Hundred Fifty-Five Thousand Dollars ($355,000)
interest pursuant to the following terms:
amount of this Promissory Note (this “Note”)
any and all interest accrued hereon shall become payable and due on June 30,
2007 (the “Maturity
Interest shall accrue on the outstanding principal balance hereof at a rate
and one half percent (1.5%) per month. Interest shall be (a) calculated on
basis of a 365-day year and the actual number of days elapsed, to the extent
permitted by applicable law and (b) paid monthly in cash, commencing on October
1, 2006 on the first business day of each consecutive calendar month thereafter
until the Maturity Date (and on the Maturity Date) to Lender at 109 North Post
Oak Lane, Suite 422, Houston, Texas 77024 or at another address as Lender shall
specify in writing.
Note is secured by a Pledge and Escrow Agreement (the “Pledge
even date herewith, by and among the Company, Lender and the Escrow Agent;
Insider Pledge and Escrow Agreement (“Insider
even date herewith, by and among the Company, Lender, Wayne Allyn Root and
Escrow Agent; a Security Agreement (the “Security
even date herewith, by and between the Company and Lender; and a Subsidiary
Security Agreement (the “Subsidiary
between Lender and Global SportsEDGE, Inc., a wholly-owned subsidiary of the
may be voluntarily prepaid, without penalty or premium, in whole or in part,
any time and from time to time. Any prepayment must include all accrued interest
on the principal being paid through the date of prepayment.
fullest extent permitted by law and except as otherwise provided herein, the
Company waives demand, presentment, protest, notice of dishonor, suit against
joinder of any other person, and all other requirements necessary to charge
hold the Company liable with respect to this Note.
Indemnities and Expenses.
event of default as described herein, the Company agrees to pay all reasonable
fees and costs incurred by Lender in collecting or securing or attempting to
collect or secure this Note, including reasonable attorneys’ fees and expenses,
whether or not involving litigation, collecting upon any judgments and/or
appellate or bankruptcy proceedings. The Company agrees to pay any documentary
stamp taxes, intangible taxes or other taxes which may now or hereafter apply
this Note or any payment made in respect of this Note, and the Company agrees
indemnify and hold Lender harmless from and against any liability, costs,
attorneys’ fees, penalties, interest or expenses relating to any such taxes, as
and when the same may be incurred.
Event of Default (as defined below), the entire principal balance and accrued
interest outstanding under this Note, and all other obligations of the Company
under this Note, shall be immediately due and payable without any action on
part of Lender, and Lender shall be entitled to seek and institute any and
remedies available to it. No remedy conferred under this Note upon Lender is
intended to be exclusive of any other remedy available to Lender, pursuant
the terms of this Note or otherwise. No single or partial exercise by Lender
any right, power or remedy hereunder shall preclude any other or further
exercise thereof. The failure of Lender to exercise any right or remedy under
this Note or otherwise, or delay in exercising such right or remedy, shall
operate as a waiver thereof. An “Event
be deemed to have occurred upon the occurrence of any of the following: (i)
Company should fail for any reason or for no reason to make payment of the
outstanding principal balance plus accrued interest pursuant to this Note within
the time prescribed herein; or (ii) the Company fails to satisfy any other
obligation or requirement of the Company under this Note (except as may be
covered by Section 7(i) herein) or other Transaction Document (as such term
defined in the Loan Agreement), or otherwise commit any breach or default of
provision of this Note or other Transaction Document which is not cured within
the time prescribed; or (iii) any proceedings under any bankruptcy laws of
United States of America or under any insolvency, not disclosed to Lender,
reorganization, receivership, readjustment of debt, dissolution, liquidation
any similar law or statute of any jurisdiction now or hereinafter in effect
(whether in law or at equity) is filed by or against the Company or for all
any part of its property; or (iv) the Company’s common stock shall cease to be
quoted for trading or listing on either the Nasdaq OTC Bulletin Board or if
listed on Nasdaq Capital Market, New York Stock Exchange, American Stock
Exchange or the Nasdaq National Market (each, a “Subsequent
cease to be quoted for trading or listing on such Subsequent Market and shall
not again be quoted or listed for trading thereon within five (5) trading days
of such delisting; or (v) except as disclosed in Item 3.4 of the Disclosure
Schedule to the Loan Agreement, the Company or any subsidiary of the Company
shall default in any of its obligations under any other note, debenture, or
mortgage, credit agreement or other facility indenture agreement, factoring
agreement or other instrument under which there may be issued, or by which
may be secured or evidenced any indebtedness for borrowed money or money due
under any long term leasing or factoring agreement of the Company or any
subsidiary of the Company in an amount exceeding One Hundred Thousand Dollars
($100,000), 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; or (vi) the Company shall fail for any reason to effect the Share
Increase in accordance with Section 5.8 of the Loan Agreement.
event shall any agreed to or actual interest charged, reserved or taken by
Lender as consideration for this Note exceed the limits imposed by the laws
the State of Delaware. In the event that the interest provisions of this Note
shall result at any time or for any reason in an effective rate of interest
exceeds the maximum interest rate permitted by applicable law, then without
further agreement or notice the obligation to be fulfilled shall be
automatically reduced to such limit and all sums received by Lender in excess
those lawfully collectible as interest shall be applied against the principal
this Note immediately upon Lender’s receipt thereof, with the same force and
effect as though the Company had specifically designated such extra sums to
so applied to principal and Lender had agreed to accept such extra payment(s)
a premium-free prepayment or prepayments.
repayment by the Company of all of its obligations hereunder to Lender,
including, without limitation, the face amount of this Note, plus accrued but
unpaid interest, the indebtedness evidenced hereby shall be deemed canceled
paid in full. Except as otherwise required by law or by the provisions of this
Note, payments received by Lender hereunder shall be applied first against
expenses and indemnities, next against interest accrued on this Note, and next
in reduction of the outstanding principal balance of this Note.
provision of this Note is, for any reason, invalid or unenforceable, the
remaining provisions of this Note will nevertheless be valid and enforceable
will remain in full force and effect. Any provision of this Note that is held
invalid or unenforceable by a court of competent jurisdiction will be deemed
modified to the extent necessary to make it valid and enforceable and as so
modified will remain in full force and effect.
Note may be amended, or any provision of this Note may be waived, provided
any such amendment or waiver will be binding on a party hereto only if such
amendment or waiver is set forth in a writing executed by the parties hereto.
The waiver by any such party hereto of a breach of any provision of this Note
shall not operate or be construed as a waiver of any other breach.
as otherwise provided herein, this Note shall bind and inure to the benefit
and be enforceable by the parties hereto and their permitted successors and
Note shall not be directly or indirectly assignable or delegable by the Company.
Lender may assign this Note as long as such assignment complies with the
Securities Act of 1933, as amended.
language used in this Note will be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any party.
party hereto will execute all documents and take such other actions as the
party may reasonably request in order to consummate the transactions provided
for herein and to accomplish the purposes of this Note.
Consents, etc. Any
notices, consents, waivers or other communications required or permitted to
given under the terms hereof must be in writing and will be deemed to have
delivered: (i) upon receipt, when delivered personally; (ii) upon receipt,
sent by facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) one
(1) business day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same.
addresses and facsimile numbers for such communications shall be:
to the Company:
South Jones Boulevard
Vegas, Nevada 89118
a copy to:
& Lockhart Nicholson Graham LLP
South Biscayne Blvd. - Suite 2000
E. Parker, Esq.
Business Finance, Inc.
North Post Oak Lane
such other address and/or facsimile number and/or to the attention of such
person as the recipient party has specified by written notice given to each
other party five (5) business days prior to the effectiveness of such
change. Written confirmation of receipt (a) given by the recipient of such
notice, consent, waiver or other communication, (b) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (c) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (a), (b) or (c) above, respectively.
Other Obligations, Breaches and Injunctive Relief.
remedies provided in this Note shall be cumulative and in addition to all other
remedies available to Lender under this Note, at law or in equity (including
decree of specific performance and/or other injunctive relief), no remedy of
Lender contained herein shall be deemed a waiver of compliance with the
provisions giving rise to such remedy and nothing herein shall limit Lender’s
right to pursue actual damages for any failure by the Company to comply with
terms of this Note. Every
right and remedy of Lender under any document executed in connection with this
transaction may be exercised from time to time and as often as may be deemed
expedient by Lender.
Company acknowledges that a breach by it of its obligations hereunder will
irreparable harm to Lender and that the remedy at law for any such breach may
inadequate. The Company therefore agrees that, in the event of any such breach
or threatened breach, Lender shall be entitled, in addition to all other
available remedies, to an injunction restraining any breach, and specific
performance without the necessity of showing economic loss and without any
or other security being required.
interpretation and construction of this Agreement, and all matters relating
hereto, shall be governed by the laws of the State of Delaware without giving
effect to the principles of conflicts of laws thereof. Each of the parties
hereto consents to the jurisdiction of the federal and state courts of the
of Texas in any such action or proceeding and waives any objection to venue
of the parties hereto will hereafter enter into any agreement which is
inconsistent with the rights granted to the parties in this Note.
herein expressed or implied is intended or shall be construed to confer upon
give to any person or entity, other than the parties to this Note and their
respective permitted successor and assigns, any rights or remedies under or
reason of this Note.
of Jury Trial.
AS A MATERIAL INDUCEMENT FOR LENDER TO LOAN TO THE COMPANY THE MONIES HEREUNDER,
THE COMPANY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
RELATED IN ANY WAY TO THIS NOTE AND/OR ANY AND ALL OF THE OTHER DOCUMENTS
ASSOCIATED WITH THIS TRANSACTION.
Note (including the recitals hereto) sets forth the entire understanding of
parties with respect to the subject matter hereof, and shall not be modified
affected by any offer, proposal, statement or representation, oral or written,
made by or for any party in connection with the negotiation of the terms hereof,
and may be modified only by instruments signed by all of the parties
to Hire Counsel; Role of Kirkpatrick & Lockhart Nicholson Graham
acknowledges that they have been advised and have been given an opportunity
hire counsel with respect to this Agreement and the transactions contemplated
hereby. Lender further acknowledges that the law firm of Kirkpatrick &
Lockhart Nicholson Graham LLP has solely represented the Company in connection
with this Agreement and the transactions contemplated hereby and no other
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Note is executed by the undersigned as of the date hereof.
/s/ Wayne Allyn Root
Chief Executive Officer