Contract
Exhibit
10.5
THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). NO
INTEREST IN THIS NOTE MAY BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT
APPLICABLE, PURSUANT TO RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE
ACT), OR (iii) AN EXEMPTION FROM REGISTRATION UNDER THE ACT WHERE PAYEE HAS
FURNISHED TO THE COMPANY AN OPINION OF ITS COUNSEL THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT IS AVAILABLE.
XXX
X. XXXXXXX
SENIOR
PROMISSORY NOTE
Original
Principal Amount: U.S. $455,000
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Issuance
Date: April 4, 2008
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FOR VALUE
RECEIVED, the undersigned, XXX X. XXXXXXX (the “Payor”), hereby
promises to pay, subject to and in accordance with the terms and conditions of
this Note, to Global Realty Development Corp. (the “Payee”) the principal sum of
FOUR HUNDRED FIFTY-FIVE THOUSAND DOLLARS ($455,000) (the “Principal Amount”) in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts, on the first to occur
of the following dates: (i) June 18, 2008 (the “Maturity Date”), (ii) any date
before the Maturity Date on which the Payor, at his sole election, prepays this
Note in whole (the “Prepayment Date”) or (iii) any other date on which any
Principal Amount of, or accrued unpaid interest on, this Note is declared to be,
or becomes, due and payable pursuant to its terms prior to the Prepayment Date
or Maturity Date (the "Acceleration Date"). Notwithstanding the
foregoing promise to pay the Principal Amount, the Payor shall have the option
to cancel this Note in accordance with the terms of Section 1
below.
This Note
is being issued in connection with the Second Addendum to Rescission Agreement
for Acquisition of SMS Text Media, Inc. dated April 4, 2008 (the “Amended
Rescission Agreement”).
1. Option to Return Global Shares or Pay
Principal Amount. The Payor, at his sole election, shall have the option
to transfer to the Payee an aggregate of 3,033,334 shares of common stock in
Global Realty Development Corp. (the “Global Shares”) by the Maturity Date in
lieu of paying the Principal Amount of this Note in full by the Maturity Date.
For purposes of determining the Principal Amount of this Note, the 3,033,334
Global Shares shall be valued at $0.15 per share. If the Payor transfers all
3,033,334 Global Shares by the Maturity Date, then the Payee shall promptly
return the originally signed version of this Note to the Payor to be canceled.
If the Payor has not transferred to the Payee all 3,033,334 Global Shares by the
Maturity Date, then the Payor shall continue to be obligated to pay the
Principal Amount of this Note, including any unpaid and accrued interest after
the Maturity Date.
2. Payment of Principal Amount;
Interest.
2.1 The
Principal Amount of this Note outstanding shall bear no interest and shall be
paid in cash on the earliest to occur of (i) the Maturity Date, (ii) the
Prepayment Date, or (iii) the Acceleration Date. In the event the
Note is not paid when due, the Note shall carry a penalty and begin to accrue
simple interest on an annual basis (the "Penalty Rate") of sixteen percent (16%)
until the Note is paid. Interest is payable monthly on the last day
of each month.
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2.2 All
payments made by the Payor on this Note shall be applied first to the payment of
accrued unpaid interest on this Note and then to the reduction of the unpaid
principal balance of this Note.
2.3 In
the event that the date for the payment of any amount payable under this Note
falls due on a Saturday, Sunday or public holiday under the laws of the State of
New York, the time for payment of such amount shall be extended to the next
succeeding business day and interest, if any, at the Penalty Rate shall continue
to accrue on any Principal Amount so effected until the payment thereof on such
extended due date.
3. Security
and Ranking. This Note shall be senior debt issued pursuant to the
Amended Rescission Agreement and senior to all other indebtedness of the
Payor.
4. Optional
Prepayment. The Principal
Amount of this Note may be prepaid in whole or in part at any time, at the sole
election of the Payor.
5. Covenants of
Payor.
Payor
covenants and agrees that, so long as this Note remains outstanding and unpaid,
in whole or in part:
5.1. Payor
shall immediately repay this Note in full, including all accrued interest
thereon, upon receipt by the Payor of an aggregate amount of at least $400,000
in gross proceeds from (i) the Payor’s sale, transfer or assignment in any way
of any Global Shares, or (ii) the creation of any debt obligation by Payor,
other than the Note attached as Exhibit F to the Amended Rescission
Agreement.
5.2. Any gross
proceeds, cash flow, profits, assets, or income received by the Payor with
respect to any transaction involving the Global Shares may only be used to repay
this Note.
5.3. Payor
will, promptly following the occurrence of an Event of Default or of any
condition or event which, with the giving of notice or the lapse of time or
both, would constitute an Event of Default, furnish a statement to Payee setting
forth the details of such Event of Default or condition or event and the action
which Payor intends to take with respect thereto;
5.4. Payor
shall not create, incur, assume or suffer to exist any pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, or security interest,
mortgage, deed of trust, easement or encumbrance, or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including any lease or title retention agreement, any financing
lease having substantially the same economic effect as any of the foregoing, and
the filing of, or agreement to give, any financing statement perfecting a
security interest under the Uniform Commercial Code or comparable law of any
jurisdiction) with respect to the Global Shares.
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5.5. Payor
shall not issue any debt or other instrument which would give the holder
thereof, directly or indirectly, rights that are senior or superior to any right
of the Payee, except as expressly permitted herein.
5.6. Xxxxx
agrees that any recourse to Payor under any permitted indebtedness incurred
after the issuance date of this Note shall be subordinated to the claims of
Payee.
6.
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Events
of Default. Each of the
following events shall constitute an "Event of
Default":
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6.1. Payor
makes an assignment for the benefit of creditors, or files with a court of
competent jurisdiction an application for appointment of a receiver or similar
official with respect to it or any substantial part of its assets, or Payor
files a petition seeking relief under any provision of the Federal Bankruptcy
Code or any other federal or state statute now or hereafter in effect affording
relief to debtors, or any such application or petition is filed against Payor,
which application or petition is not dismissed or withdrawn within sixty (60)
days from the date of its filing;
6.2. Xxxxx
fails to pay the Principal Amount, or interest on, or any other amount payable
under this Note as and when the same becomes due and payable;
6.3. A final
judgment for the payment of money in excess of $100,000 is entered against Payor
by a court of competent jurisdiction, and such judgment is not discharged (nor
the discharge thereof duly provided for) in accordance with its terms, nor a
stay of execution thereof procured, within sixty (60) days after the date such
judgment is entered, and, within such period (or such longer period during which
execution of such judgment is effectively stayed), an appeal therefrom has not
been prosecuted and the execution thereof caused to be stayed during such
appeal;
6.4. Payor
defaults in the due observance or performance of any covenant, condition or
agreement on the part of Payor to be observed or performed pursuant to the terms
of this Note (other than the default specified in Section 6.3 above), and such
default continues uncured for a period of thirty (30) days then, upon the
occurrence of any such Event of Default under this Section and any of the
sections above and at any time thereafter, Payee shall have the right (at
Payee's option), upon delivery of written notice to Payor which expressly
identifies the nature of default under this Section or any of the sections
above, to declare the principal of, accrued unpaid interest on, and all other
amounts payable under this Note to be forthwith due and payable, whereupon all
such amounts shall be immediately due and payable to Payee, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived.
6.5. Xxxxx
fails to pay the Principal Amount, or interest on, or any other amount payable
under this Note as and when the same becomes due and payable.
6.6. Any event
of default occurs on any other senior indebtedness of Payor or any other
indebtedness to which the Payor is a guarantor. Any default occurs
under any indebtedness of the Payor that results in redemption of or
acceleration prior to maturity of $500,000 or more of such indebtedness in the
aggregate.
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6.7. Payor
issues any debt or other instrument which would give the holder thereof,
directly or indirectly, a right in any asset of Payor that are senior or
superior to any right of the Payee in or to such assets, other than as expressly
permitted herein.
7.
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Replacement of
Note.
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7.1. In the
event that this Note is mutilated, destroyed, lost or stolen, Payor shall, at
his sole expense, execute, register and deliver a new Note, in exchange and
substitution for this Note, if mutilated, or in lieu of and substitution for
this Note, if destroyed, lost or stolen. In the case of destruction,
loss or theft, Payee shall furnish to Payor indemnity reasonably satisfactory to
Payor, and in any such case, and in the case of mutilation, Payee shall also
furnish to Payor evidence to its reasonable satisfaction of the mutilation,
destruction, loss or theft of this Note and of the ownership
thereof. Any replacement Note so issued shall be in the same
outstanding Principal Amount as this Note and dated the date to which interest
shall have been paid on this Note or, if no interest shall have yet been paid,
dated the date of this Note.
7.2. Every
Note issued pursuant to the provisions of Section 7.1 above in substitution for
this Note shall constitute an additional contractual obligation of the
Payor.
8. Suits for
Enforcement and Remedies. If any one or
more Events of Default shall occur and be continuing, the Payee may proceed to
(i) protect and enforce Payee's rights either by suit in equity or by
action at law, or both, whether for the specific performance of any covenant,
condition or agreement contained in this Note or in any agreement or document
referred to herein or in aid of the exercise of any power granted in this Note
or in any agreement or document referred to herein, (ii) enforce the
payment of this Note, or (iii) enforce any other legal or equitable right
of Payee. No right or remedy herein or in any other agreement or
instrument conferred upon Payee is intended to be exclusive of any other right
or remedy, and each and every such right or remedy shall be cumulative and shall
be in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or by statute or otherwise.
9. Unconditional Obligation;
Fees, Waivers, Other.
9.1. Except as
provided in Section 1 of this Note, the obligations to make the payments
provided for in this Note are absolute and unconditional and not subject to any
defense, set-off, counterclaim, rescission, recoupment or adjustment
whatsoever.
9.2. If,
following the occurrence of an Event of Default, Payee shall seek to enforce the
collection of any amount of principal of and/or interest on this Note, there
shall be immediately due and payable from Payor, in addition to the then unpaid
principal of, and accrued unpaid interest on, this Note, all reasonable costs
and expenses incurred by Payee in connection therewith, including, without
limitation, reasonable attorneys' fees and disbursements.
9.3. No
forbearance, indulgence, delay or failure to exercise any right or remedy with
respect to this Note shall operate as a waiver or as acquiescence in any
default, nor shall any single or partial exercise of any right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy.
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9.4. This Note
may not be modified or discharged (other than by payment or exchange) except by
a writing duly executed by Xxxxx and Payee or as otherwise provided in the
Purchase Agreement.
9.5. Payor
hereby expressly waives demand and presentment for payment, notice of
nonpayment, notice of dishonor, protest, notice of protest, bringing of suit,
and diligence in taking any action to collect amounts called for hereunder, and
shall be directly and primarily liable for the payment of all sums owing and to
be owing hereon, regardless of and without any notice, diligence, act or
omission with respect to the collection of any amount called for hereunder or in
connection with any right, lien, interest or property at any and all times which
Payee had or is existing as security for any amount called for
hereunder.
10. Restriction
on Transfer. This Note has
been acquired for investment, and this Note has not been registered under the
securities laws of the United States of America or any state
thereof. Accordingly, no interest in this Note may be offered for
sale, sold or transferred in the absence of registration and qualification of
this Note, under applicable federal and state securities laws or an opinion of
counsel of Payee reasonably satisfactory to Payor that such registration and
qualification are not required.
11. Intentionally
Deleted.
12. Miscellaneous.
12.1. The
headings of the various paragraphs of this Note are for convenience of reference
only and shall in no way modify any of the terms or provisions of this
Note.
12.2. All
notices required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given when personally delivered or sent by
registered or certified mail (return receipt requested, postage prepaid),
facsimile transmission or overnight courier to the address of the intended
recipient as set forth below or at such other address as the intended recipient
shall have hereafter given to the other party hereto pursuant to the provisions
of this Note:
IF TO
PAYEE: Global
Realty Development Corp.
Attn:
Xxxxxx X. Xxxx, Chief Executive Officer
00000
Xxxxx Xxx Xxxxxxxxx Xxxxx 000
Coral
Springs, Florida 33076
Telephone: (000)
000-0000
Fax: (000-000-0000)
With a
copy
to: Xxxxxxxxxx
& Xxxxx LLP
Attention:
Xxxxxxx X. Xxxxx, Esq.
00000
Xxxxxxxx Xxxx., Xxxxx 000
Los
Angeles, California 90024
Telephone: (000)
000-0000
Fax: (000)
000-0000
IF TO
PAYOR: Xxx
X. Xxxxxxx
_______________________
_______________________
_______________________
Telephone: _____________
Fax:
___________________
12.3. This Note
and the obligations of Payor and the rights of Payee shall be governed by and
construed in accordance with the substantive laws of the State of Florida
without giving effect to the choice of laws rules thereof.
12.4. This Note
shall bind Payor and its successors and assigns.
SIGNATURE
PAGE TO FOLLOW
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SIGNATURE
PAGE TO
XXX
X XXXXXXX SENIOR PROMISSORY NOTE DATED APRIL 4, 2008
XXX
X XXXXXXX
By: _______________________________
Xxx
X. Xxxxxxx
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