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EXHIBIT 10(2)
SUBSTITUTE AND REPLACEMENT
CONFESSED JUDGMENT PROMISSORY NOTE
$58,333.33 AS OF APRIL 4, 1996
LAGUNA BEACH, CALIFORNIA
THIS SUBSTITUTE AND REPLACEMENT CONFESSED JUDGMENT PROMISSORY NOTE (the
"Replacement Note") is made as of this 4th day of April, 1996 by and between
MPTV, Inc., a Nevada corporation (the "Maker"), and Winners Entertainment, Inc.,
a Delaware corporation.
WITNESSETH:
WHEREAS, Maker executed and delivered to Payee a certain Promissory Note,
dated March 4, 1994 in the original principal sum of Fifty Thousand Dollars
($50,000.00) (the "Original Note");
WHEREAS, Maker and Payee desire to substitute and replace the Original Note
with this substitute and replacement note, dated as of April 4, 1996, issued by
Maker and payable to the order of Payee in the aggregate original principal sum
of Fifty-Eight Thousand Thirty-Three and 33/100 Dollars ($58,333.33), which
Original Note is being marked "Replaced" and returned to the Maker concurrently
with the execution and delivery of this Replacement Note; and
WHEREAS, Maker and Payee desire the Replacement Note (i) to reflect that
the due date of the Original Note has been changed, (ii) to appoint Thomas K.
Russell as attorney-in-fact of Maker to confess judgment on the Replacement Note
and (iii) to further modify certain terms and provisions of the Original Note as
hereunder provided.
NOW, THEREFORE, in consideration of the foregoing, the agreements
hereafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Original Note is hereby
substituted and replaced by this Replacement Note as follows, effective as of
the date first written above:
FOR VALUE RECEIVED, the undersigned Maker promises to pay to the order of
the Payee on August 5, 1996 (the "Maturity Date"), the principal sum of
FIFTY-EIGHT THOUSAND THREE HUNDRED THIRTY-THREE AND 33/100 DOLLARS ($58,333.33)
(the "Principal Sum") with interest computed daily on the unpaid Principal Sum
at the per annum rate of interest indicated below, payable at 1461 Glenneyre
Street, Suite F, Laguna Beach, California 92651, or such other place as the
holder hereof may designate in writing delivered or mailed to the Maker. The
payment of principal will be in addition to the payments of interest.
The Maker shall pay the Principal Sum, together with accrued interest at
the fixed rate of eight percent (8%) per annum to be paid in full on the
Maturity Date. Interest shall accrue and be payable on the unpaid Principal Sum
from the date hereof until this Note is fully paid. Interest on this Note shall
be calculated on the basis of a 360-day year applied to the actual number of
days the Principal Sum, or any portion thereof, is outstanding.
Each payment hereunder shall be applied first to the payment of all
interest accrued hereunder as of the date such payment is received, and the
balance of such payment shall be applied to the principal amount hereof. Any
prepayment shall be applied to payments due under this Note in the inverse order
of maturity. Any payments made after demand,
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or default hereunder, may be applied to pay interest, principal, costs or late
charges as the Payee, in its sole discretion, may determine.
In the case of an Event of Default as hereinafter defined, and at the
option of the Payee, the whole of the principal sum shall become immediately due
and payable, without notice, notice of the exercise of such option being hereby
waived.
As used in this Note, an Event of Default shall be:
1. The failure of the Maker to pay, in whole or in part, any sum provided
for herein when due, or to perform as required hereunder or any other instrument
entered into in connection herewith as defined herein or therein, and if an
Event of Default is not defined in such Loan Document, then the occurrence of an
act of omission of the Maker or any other person or entity in breach of any
provision of such Loan Document and the expiration of any notice and/or grace
period relating to such breach;
2. The death or insolvency of the Maker;
3. The filing by the Maker of a petition for relief from creditors under
Title 11 of the United States Code or the filing against the Maker of an
involuntary bankruptcy petition under Title 11 of the United States Code and the
failure of the Maker to have such petition dismissed within ninety (90) days
after such filing or the appointment of a receiver for all or a portion of its
assets and the failure to have the same dismissed within forty-five (45) days of
such appointment;
4. The filing of formal charges against the Maker under any federal or
state law for which forfeiture is a potential penalty; or
5. The issuance of any attachment or garnishment against the Maker, if such
attachment or garnishment is not dismissed within sixty (60) days of service of
notice thereof on the Maker.
The Maker also promises to pay Payee, upon demand by Payee, from time to
time, all costs of collection, and all costs of enforcement of this Note or any
other instrument entered into in connection herewith, including reasonable
attorneys' fees and costs incurred following and during the continuance of a
default hereunder or such other instrument, whether or not any legal action
shall be instituted to enforce this Note.
The privilege is reserved to prepay at any time, without penalty or fee,
but without discount, the entire indebtedness or any part thereof.
All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally,
by overnight or second day courier, or by registered or certified mail, return
receipt requested, properly addressed and postage prepaid,
if to Payee, to: if to Maker, to:
Thomas K. Russell James C. Vellema
Winners Entertainment, Inc. MPTV, Inc.
1461 Glenneyre Street, Suite F 3 Civic Plaza, Suite 210
Laguna Beach, California 92651 Newport Beach, California 92660
Telephone (714) 376-3010 (714) 760-6747
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The date notice is deemed given is the date of receipt of such notice
except in the case of an addressee's refusal to accept delivery or in the case
of a change of address of which no notice of such change was properly provided.
In either such case, notice shall be deemed given upon the date it is sent to
the last known address. Notice of a change of address shall have been properly
given when such new address, and the date such new address shall become
effective, is sent in the manner set forth above.
The Maker, and all persons or entities now or at any time liable, whether
primarily or secondarily, for payment of the indebtedness evidenced hereby, for
themselves, their heirs, legal representatives, successors and assigns,
respectively, expressly waive presentment for payment, notice of dishonor,
protest, notice of protest, all other notices (except as expressly provided
herein) and diligence in collection, and consent that the time of said payment
or any part thereof may be extended by the Payee, without in any way modifying,
altering, releasing, affecting, or limiting their respective liability.
Any and all amounts to be paid hereunder shall be paid in good funds,
without setoff, counterclaim or deduction.
MAKER AGREES THAT TIME IS OF THE ESSENCE IN THE PERFORMANCE OF ALL
OBLIGATIONS HEREUNDER.
MAKER HEREBY CONSTITUTES AND APPOINTS THOMAS K. RUSSELL AS MAKER'S
ATTORNEY-IN-FACT, TO CONFESS JUDGMENT ON THIS PROMISSORY NOTE IN ANY APPLICABLE
COURT OF THE CITY OF LAGUNA BEACH, CALIFORNIA, PURSUANT TO THE LAWS OF THE STATE
OF CALIFORNIA. MAKER HEREBY STATES AND ACKNOWLEDGES THAT THE PURPOSE OF THIS
PARAGRAPH IS TO PERMIT PAYEE TO FILE THIS PROMISSORY NOTE AS A CONFESSION OF
JUDGMENT AGAINST MAKER FOR THE THEN UNPAID PRINCIPAL BALANCE OF THIS PROMISSORY
NOTE, ALL COSTS OF COLLECTION, INCLUDING BUT NOT LIMITED TO, ATTORNEYS' FEES AND
COSTS INCURRED BY PAYEE ON ACCOUNT OF SUCH COLLECTION AND ACCRUED INTEREST AT
THE INTEREST RATE AS SET FORTH HEREIN TO AND INCLUDING THE DATE OF SAID
CONFESSION OF JUDGMENT AND INTEREST THEREAFTER AT THE RATE OF INTEREST APPLIED
TO THE UNPAID PRINCIPAL BALANCE.
This Note shall be governed in all aspects by the laws of the State of
California (exclusive of principles of conflicts of laws). The Maker hereby
consents to the jurisdiction of the Courts of the Sate of California, and waives
all defenses of forum non conveniens and lack of venue or personal jurisdiction
with respect to any action brought on this Replacement Note in such courts.
This Note shall be binding upon the Maker and its heirs, executors,
administrators, personal representatives, successors and assigns and shall inure
to the benefit of the Payee and its heirs, executors, administrators, personal
representatives, successors and assigns.
EACH PARTY TO THIS NOTE HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRAIL BY JURY
OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS NOTE OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
THEREWITH, OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS NOTE OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
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SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT THE PAYEE MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE MAKER HERETO TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
Whenever possible, each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Note.
This Replacement Note is not a novation of the Original Note.
This Note shall not be modified, and no terms of this Note shall be waived
except by a written instrument signed by the Maker and the Payee.
The term "Maker" as used in this Note shall mean and have reference to,
collectively, all parties and each of them directly or indirectly obligated for
the indebtedness evidenced by this Note, whether as principal maker, endorser,
guarantor, or otherwise, together with the respective heirs, administrators,
executors, legal representatives, successors and assigns of each of the
foregoing.
All amounts payable hereunder are payable in lawful money of the United
States of America.
This Replacement Note may be executed in counterparts, each of which shall
be deemed an original hereof.
Failure to exercise any of the foregoing options contained in this Note or
other instrument entered into in connection herewith shall not constitute a
waiver of the right to exercise the same or any other option at any subsequent
time in respect to any other event. The acceptance by Payee of any payment
hereunder that is less than payment in full of all amounts due and payable at
the time a full payment is due shall not constitute a waiver of the right to
exercise any of the foregoing options contained in this Note or any other
instrument entered into in connection herewith at that time or at any subsequent
time or nullify any prior exercise of any such option without the express
written consent of Payee.
IN WITNESS WHEREOF, this Replacement Note has been executed by the parties
as of the day and year hereinabove set forth, with the specific intention that
this Replacement Note constitute an instrument under seal in the State of
California.
MAKER: PAYEE:
MPTV, INC., WINNERS ENTERTAINMENT, INC.,
a Nevada Corporation A Delaware corporation
/s/ James C. Vellema /s/ Thomas K. Russell
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James C. Vellema, President Thomas K. Russell, Secretary
(seal) (seal)
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