Note
Promissory Note
The
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
requirement of the Securities Act and in accordance with applicable state
securities laws as evidenced by a legal opinion of counsel to the transferor
to
such effect, the substance of which shall be reasonably acceptable to the
Company.
|
$400,000
|
March
31, 2006
|
1. Amount;
Obligation to Pay; Interest Rate.
FOR
VALUE RECEIVED, as hereinafter set forth and at the times hereinafter stated,
The Tube Media Corp., a Delaware corporation (the “Maker”), whose mailing
address is 1451 W. Cypress Creek Road, Suite 300, Fort Lauderdale,
FL,
33309
promises
to pay to the order of Barry Honig (the "Payee"), whose mailing address is
____________________,
in funds
constituting legal tender of the United States of America, the principal sum
of
Four Hundred Thousand dollars ($400,000), with interest as set forth in
Paragraph 3 hereof.
2. Interest
Rate.
Interest shall accrue on the unpaid principal balance of this Note from the
date
of issuance until paid in full at the rate of four percent (4%) per year,
calculated on a 365/366 day year, as applicable, provided, however, that upon
an
Event of Default (as defined below), interest shall accrue as provided in
Paragraph 7 hereof.
3.
Payment
Terms.
Principal and Interest on this
Note
shall be paid one year from the date hereof (the “Maturity Date”).
Notwithstanding the foregoing, the payments due hereunder shall be accelerated,
in whole or in part, as set forth below: (i) in the event a round of financing
of not less than $2.0 million and not more than $2.49 million is closed, whether
through Payee or any third party, at any time prior to the Maturity Date, then
in such event the Maker shall pay to Payee an amount equal to $320,000, and
(ii)
in the event a round of financing equal to $2.5 million or greater is closed,
whether through Payee or any third party, at any time prior to the Maturity
Date, then in such event the Maker shall pay to Payee all sums due under this
Note. Maker may prepay all or any part of interest or principal without
penalty.
4. Manner
and Place of Payment; Holidays.
All
payments on this Note shall be made in coin or currency which, at the time
or
times of payment, constitute legal tender for public or private debts in the
United States of America. All payments on this Note shall be made to Payee
at
the address stated above, or at such other address as Payee shall designate
in
writing. If the prescribed date of payment of any of the principal or interest
hereon is a Saturday, Sunday or legal holiday, such payment shall be due on
the
next succeeding business day.
5. Events
of Default and Acceleration.
Time is
of the essence of this Note. The occurrence of the event shall constitute an
“Event of Default” hereunder: (i) Maker's failure to pay timely any amount due
hereunder; (ii) bankruptcy, reorganization, insolvency or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any
law
for the relief of debtors shall be instituted by or against Maker and, if
instituted against Maker, Maker shall by any action or answer approve of,
consent to or acquiesce in any such proceedings or admit the material
allegations of, or default in answering a petition filed in any such proceeding
or such proceedings shall not be dismissed within ninety (90) calendar days
thereafter; or (iii) any breach by Maker, that remains uncured for greater
than
5 days after receipt of written notice of same, of any of the terms of this
Note
(other than payment obligations) or any other agreement between Maker or Payee.
If any such Event of Default occurs, Payee may, then or at any time thereafter,
without notice (except as may be required by law), and at its option, accelerate
maturity and cause the entire unpaid principal balance of this Note, with
interest, fees and charges accrued hereon, to become immediately due and
payable. If Payee waives Payee's right to accelerate maturity as a result of
an
Event of Default hereunder, either one or more time or repeatedly, nevertheless
Payee shall not be deemed to have waived the right to require strict compliance
with the terms of this Note thereafter.
6. Interest
After Event of Default, Acceleration or Maturity.
Upon an
occurrence of an Event of Default hereunder, the entire unpaid balance of said
principal sum and interest then accrued shall bear interest, while such Event
of
Default continues both before and after judgment, at twelve percent (12%) per
year on the unpaid balance until paid, calculated on a 365/366 day year, as
applicable.
7. Application
of Payments.
All
sums paid hereon shall be applied first to the payment of accrued interest
due
on the unpaid principal balance and the remainder to the reduction of unpaid
principal.
8. Attorney's
Fees and Expenses.
In the
event that Payee or other holder of this Note brings suit hereon, or employs
an
attorney or incurs expenses to compel payment of this Note or any portion of
the
indebtedness evidenced hereby, or to cure any Event of Default under this Note,
whether through suit, probate, insolvency, reorganization, bankruptcy or any
other legal or informal proceeding, the Maker and all endorsers, guarantors
and
sureties agree additionally to pay all reasonable attorney's fees, court costs
and other reasonable expenses thereby incurred by Payee or other holder of
this
Note.
9. Waiver.
Except
as may be required by law, Maker and all endorsers, guarantors, sureties and
accommodation parties of this Note, both before and after maturity, hereby
expressly (i) waive all protest, notice of protest, demand for payment,
presentment for payment, notice of intention to accelerate maturity, notice
of
acceleration of maturity, notice of dishonor, bringing of suit, and diligence
in
taking any action to collect any amounts called for hereunder and in the
handling of properties, rights or collateral at any time existing in connection
herewith; (ii) consent to and waive notice of any one or more renewal, extension
or modification of this Note, whether made to or in favor of the Maker or any
other person or persons, regardless whether such renewal, extension or
modification modifies the terms, interest rate or time for payment of the Note
and regardless of the length of term of the renewal, extension or modification;
(iii) consent to and waive notice of any substitution, exchange or release
of
any security hereafter given for this Note; (iv) consent to and waive notice
of
the release of any party primarily or secondarily liable hereon; (v) consent
to
and waive notice of any other indulgences, none of which shall otherwise affect
the liability of any of said parties for the indebtedness evidenced by this
Note; and (vi) agree that it will not be necessary for Payee, in order to
enforce payment of this Note, first to institute suit against or to exhaust
Payee's remedies against Maker or any other party liable hereunder, or to
proceed against any other security for this Note.
10. Parties
in Interest.
This
Note may be assigned by Payee at any time upon notice to Maker. This Note may
not be assigned by Maker without the prior written consent of Payee. This Note
will be binding in all respects upon Maker and inure to the benefit of Payee
and
its permitted successors and assigns.
11. Definitions.
The
terms "Maker" and "Payee" and other nouns and pronouns include the singular
and/or the plural, as appropriate. The terms "Maker" and "Payee" also include
their respective heirs, personal representatives, permitted successors and
assigns. The term "Payee" includes subsequent permitted holders of this Note.
Where the Maker is a partnership or joint venture, the term "Maker" also
includes each partner or joint venturer in such party's personal capacity.
12. Choice
of Law; Venue.
All
questions concerning the construction, validity, enforcement and interpretation
of this Note shall be governed by and construed and enforced in accordance
with
the internal laws of the State of Florida, without regard to the principles
of
conflicts of law thereof. Each party agrees that all proceedings concerning
the
interpretations, enforcement and defense of the transactions contemplated by
this Note (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in Broward County, Florida.
Each party hereto hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting in Broward County, Florida for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such proceeding
is improper. Each party hereto hereby irrevocably waives personal service of
process and consents to process being served in any such proceeding by mailing
a
copy thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for notices to
it
under this Note and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein
shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. The parties hereto hereby irrevocably waive, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Note or the transactions
contemplated hereby. If any party shall commence a proceeding to enforce any
provisions of this Note, then the prevailing party in such proceeding shall
be
reimbursed by the other party for its reasonable attorneys fees and other costs
and expenses incurred with the investigation, preparation and prosecution of
such proceeding.
13. Notice.
All
notices and other communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given one (1) business day after
delivery to an overnight carrier with instructions to deliver to the applicable
address set forth above, or, if sent by facsimile, upon receipt of a
confirmation of delivery.
THIS
NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN
WITNESS WHEREOF, Maker has executed this Note effective as of the date first
set
forth above.