Exhibit 10.3
CONSOLIDATED AND RESTATED SECURED PROMISSORY NOTE
$1,180,000.00 July 31, 2001
FOR VALUE RECEIVED, the undersigned, MONSTERDAATA, INC., a Delaware
corporation ("Maker"), promises to pay to the order of COMMERCE CAPITAL, L.P., a
Tennessee limited partnership ("Payee"; Payee and any subsequent holder[s]
hereof are hereinafter referred to collectively as "Holder"), at the office of
Payee at Commerce Capital, L.P., Renaissance Tower Suite 2602, 611 Commerce
Street, Nashville, TN 37203, or at such other place as Holder may designate to
Maker in writing from time to time, the principal sum of One Million One Hundred
Eighty Thousand and NO/100THS Dollars ($1,180,000.00), together with interest on
the outstanding principal balance hereof from the date hereof at the rate of
eight percent (8.0%) per annum (computed on the basis of a 360-day year).
Interest only on the outstanding principal balance hereof shall be due and
payable monthly, in arrears, with the first installment being payable on the
first (1st) day of August, 2001, and subsequent installments being payable on
the first (1st) day of each succeeding month thereafter until June 1, 2005 (the
"Maturity Date"), at which time the entire outstanding principal balance,
together with all accrued and unpaid interest, shall be immediately due and
payable in full.
The indebtedness evidenced hereby may be prepaid in whole or in part, at
any time and from time to time, without premium or penalty. Any such prepayments
shall be credited first to any accrued and unpaid interest and then to the
outstanding principal balance hereof.
Time is of the essence of this Note. It is hereby expressly agreed that in
the event that any Event of Default shall occur under and as defined in that
certain Loan Agreement dated as of June 13, 2000, between NeighborhoodFind.com,
LLC ("NFC") and Payee, as amended by Amendment No. 1 to Loan Agreement dated as
of November 30, 2000 between the same parties, and by an Assumption and
Amendment Agreement of even date herewith between the Maker, as successor by
merger to NFC, and the Payee (the "Loan Agreement"), which Event of Default is
not cured following the giving of any applicable notice and within any
applicable cure period set forth in the Loan Agreement, then, and in such event,
the entire outstanding principal balance of the indebtedness evidenced hereby,
together with any other sums advanced hereunder, under the Loan Agreement and/or
under any other instrument or document now or hereafter evidencing, securing or
in any way relating to the indebtedness evidenced hereby, together with all
unpaid interest accrued thereon, shall, at the option of Holder and without
notice to Maker, at once become due and payable and may be collected forthwith,
regardless of the stipulated date of maturity. Upon the occurrence and
continuance as aforesaid of any Event of Default as set forth herein, at the
option of Holder and without notice to Maker, all accrued and unpaid interest,
if any, shall be added to the outstanding principal balance hereof, and the
entire outstanding principal balance, as so adjusted, shall bear interest
thereafter until paid at an annual rate (the "Default Rate") equal to the lesser
of (i) the rate that is five percentage points (5.0%) in excess of the
above-specified interest rate, or (ii) the maximum rate of interest allowed to
be charged under
applicable law (the "Maximum Rate"), regardless of whether or not there has been
an acceleration of the payment of principal as set forth herein. All such
interest shall be paid at the time of and as a condition precedent to the curing
of any such Event of Default.
This Note is a consolidation, amendment and restatement of a Secured
Promissory Note dated June 13, 2000 in the principal amount of $800,000 and a
Secured Promissory Note dated November 30, 2000 in the principal amount of
$380,000, and shall supersede and replace such notes in their entirety. This
Note is entitled to all of the benefits provided to the Holder by the Loan
Agreement and the other Loan Documents, as defined in the Loan Agreement.
In the event this Note is placed in the hands of an attorney for
collection, or if Holder incurs any costs incident to the collection of the
indebtedness evidenced hereby, Maker and any endorsers hereof agree to pay to
Holder an amount equal to all such costs, including without limitation all
reasonable attorneys' fees and all court costs.
Presentment for payment, demand, protest and notice of demand, protest and
nonpayment are hereby waived by Maker and all other parties hereto. No failure
to accelerate the indebtedness evidenced hereby by reason of an Event of Default
hereunder, acceptance of a past-due installment or other indulgences granted
from time to time, shall be construed as a novation of this Note or as a waiver
of such right of acceleration or of the right of Holder thereafter to insist
upon strict compliance with the terms of this Note or to prevent the exercise of
such right of acceleration or any other right granted hereunder or by applicable
law. No extension of the time for payment of the indebtedness evidenced hereby
or any installment due hereunder, made by agreement with any person now or
hereafter liable for payment of the indebtedness evidenced hereby, shall operate
to release, discharge, modify, change or affect the original liability of Maker
hereunder or that of any other person now or hereafter liable for payment of the
indebtedness evidenced hereby, either in whole or in part, unless Holder agrees
otherwise in writing. This Note may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
The indebtedness and other obligations evidenced by this Note are further
evidenced by (i) the Loan Agreement and (ii) certain other instruments and
documents, as may be required to protect and preserve the rights of Maker and
Payee, as more specifically described in the Loan Agreement.
All agreements herein made are expressly limited so that in no event
whatsoever, whether by reason of advancement of proceeds hereof, acceleration of
maturity of the unpaid balance hereof or otherwise, shall the amount paid or
agreed to be paid to Holder for the use of the money advanced or to be advanced
hereunder exceed the Maximum Rate. If, from any circumstances whatsoever, the
fulfillment of any provision of this Note or any other agreement or instrument
now or hereafter evidencing, securing or in any way relating to the indebtedness
evidenced hereby shall involve the payment of interest in excess of the Maximum
Rate, then, ipso facto, the obligation to pay interest hereunder shall be
reduced to the Maximum Rate; and if from any circumstance whatsoever, Holder
shall ever receive interest, the amount of which
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would exceed the amount collectible at the Maximum Rate, such amount as would be
excessive interest shall be applied to the reduction of the principal balance
remaining unpaid hereunder and not to the payment of interest. This provision
shall control every other provision in any and all other agreements and
instruments existing or hereafter arising between Maker and Holder with respect
to the indebtedness evidenced hereby.
This Note is intended as a contract under and shall be construed and
enforceable in accordance with the laws of the State of Tennessee, except that
federal law shall govern the determination of the Maximum Rate.
Maker hereby irrevocably consents to the jurisdiction of the United States
District Court for the Middle District of Tennessee and of all Tennessee state
courts sitting in Davidson County, Tennessee, for the purpose of any litigation
to which Lender may be a party and which concerns this Note or the indebtedness
evidenced hereby. It is further agreed that venue for any such action shall lie
exclusively with courts sitting in Davidson County, Tennessee, unless Holder
agrees to the contrary in writing.
HOLDER AND MAKER HEREBY KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF
COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS, PROCEEDINGS, CLAIMS OR
COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, AT LAW OR IN EQUITY,
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE LOAN DOCUMENTS.
As used herein, the terms "Maker" and "Holder" shall be deemed to include
their respective successors, legal representatives and assigns, whether by
voluntary action of the parties or by operation of law.
MAKER:
MONSTERDAATA, INC.
a Delaware corporation
By:/s/ Samuel B. Petteway, Jr.
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Name: Samuel B. Petteway, Jr.
Title: President and Chief Executive Officer
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