EXHIBIT 10.2
PROMISSORY NOTE
$326,738.00 VANCOUVER, WASHINGTON June 2, 2000
FOR VALUE RECEIVED, JIA, INC., a Washington corporation ("Borrower"), promises
to pay to JENKON INTERNATIONAL, INC., a Washington corporation or its designees
("Lender"), or to its order, at its office located at 7600 NE 41st St., Suite
300, Vancouver, WA 98662, or at such other place as the holder hereof may
designate, in lawful money of the United States of America, in cash or
immediately available funds acceptable to the holder hereof, principal not to
exceed the sum of THREE HUNDRED TWENTY-SIX THOUSAND SEVEN HUNDRED THIRTY-EIGHT
and 00/100 DOLLARS ($326,738.00), together with interest on the outstanding
principal balance until paid in full in accordance with the terms, conditions
and provisions hereinafter set forth in this Promissory Note (this "Note").
Reference is hereby made to that certain Stock Purchase Agreement (the "Stock
Purchase Agreement") entered into as of April 6, 2000 among the Borrower,
Lender, Jenkon International, Inc., a Delaware corporation, and Summit V, Inc.,
a Washington corporation.
Reference is also hereby made to those certain Stock Pledge Agreements (the
"Pledge Agreements") entered into by and between Trautman Wasserman & Company,
Incorporated and Lender, and Dan Jensen and Lender, as of the same date of this
Note. Capitalized terms used herein but not otherwise defined shall have the
same meaning attributed to them in the Stock Purchase Agreement, and the Pledge
Agreement.
INTEREST RATE. Interest shall accrue and be payable from the date hereof at the
rate of ten percent (10%) per annum (the "Note Rate"), subject to increase upon
default as hereinafter provided.
PRINCIPAL AND INTEREST PAYMENTS. All principal and accrued but unpaid interest
will be due and payable two (2) weeks from the date of this Note. All payments
due hereunder, including payments of principal and/or interest, shall be made to
the holder of this Note in United States Dollars and shall be in the form of
immediately available funds acceptable to the holder of this Note.
APPLICATION OF PAYMENTS. All payments received by Lender from or for the account
of Borrower due hereunder shall be applied by Lender, in the following manner:
First: To pay any and all costs, advances, expenses or fees due, owing
and/or payable to Lender, or paid or incurred by Lender, arising from or out of
this Note, the Pledge Agreements and any and all other instruments, guaranties,
agreements and documents executed in
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connection with or otherwise pertaining to this Note (collectively referred to
herein as the "Documents");
Second: To pay any and all interest due, owing and/or accrued under this
Note; and
Third: Payment of the outstanding principal balance on this Note.
MATURITY DATE. The entire unpaid principal balance, and all unpaid accrued
interest thereon, shall be due and payable without demand and/or notice two (2)
weeks from the date of this Note or June 16, 2000 (the "Maturity Date"). In the
event that Borrower does not pay this Note in full on the Maturity Date then, as
of said Maturity Date and thereafter until paid in full, interest accruing on
the outstanding principal balance hereunder shall be computed, calculated and
accrued on a daily basis at the Default Rate, as defined below.
UNPAID INTEREST, CHARGES AND COSTS. Interest, late charges, costs, or expenses
that are not received by Lender on the date such interest, late charges, costs,
or expenses become due, shall, at the sole discretion of Lender, be added to the
principal balance and shall from the date due bear interest at the Default Rate.
HOLIDAYS. Whenever any payment to be made under this Note shall be due on a day
other than a day on which Lender is open for business ("Business Day"),
including Saturdays, Sundays and/or legal holidays generally recognized by banks
doing business in Washington, then the due date for such payment shall be
automatically extended to the next succeeding Business Day, and such extension
of time shall in such cases be included in the computation of the interest
portion of any payment due hereunder.
NO OFFSETS OR DEDUCTIONS. All payments under the Note shall be made by Borrower
without any offset, decrease, reduction or deduction of any kind or nature
whatsoever, including, but not limited to, any decrease, reduction or deduction
for, or on account of, any offset, withholdings, present or future taxes,
present or future reserves, imposts or duties of any kind or nature that are
imposed or levied by or on behalf of any government and/or taxing agency, body
or authority by or for any municipality, state, or nation.
DEFAULT. Any one or more of the following events or occurrences shall constitute
a default under this Note (hereinafter "Default"):
(1) Lender does not receive a payment in the amount and within the
time and manner as set forth herein; or
(2) Borrower or any guarantor of this Note does not faithfully
perform each and every term, condition and/or provision contained
in the Stock Purchase Agreement or the Pledge Agreements strictly
in accordance therewith; or
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(3) There occurs an Event of Default as specified in the Pledge
Agreements; or
(4) Borrower or any other obligor, trustor or guarantor commits a
default as specified in any other obligation of Borrower owing to
Lender; or
(5) A petition or action for relief shall be filed by or against
Borrower and/or any guarantors of this Note, pursuant to the
Federal Bankruptcy Code (Title 11, U.S. Codes) in effect from
time to time, or under any other law relating to bankruptcy,
insolvency, reorganization, moratorium, creditor composition,
arrangement or other relief from debts; the appointment of a
receiver, trustee, custodian or liquidator of or for any property
of Borrower or any such guarantor; or upon the death, incapacity,
insolvency, dissolution, or termination of the business of
Borrower or any such guarantor.
Upon the occurrence of a Default hereunder, Lender may, in its sole and absolute
discretion, declare the entire unpaid principal balance, together with all
accrued and unpaid interest thereon, and all other amounts and/or payment due
hereunder, immediately due and payable, without notice and/or demand.
DEFAULT RATE. From and after the occurrence of any Default in this Note, whether
by nonpayment, maturity, acceleration, nonperformance or otherwise, and until
such Default has been cured, all outstanding amounts under this Note (including,
but not limited to, interest, costs and late charges) shall bear interest at a
per annum rate (the "Default Rate") equal to five percentage points (5.0%) over
the Note Rate.
PREPAYMENT. Borrower may prepay all or any portion of the principal amount of
this Note without penalty; provided that written notice of prepayment is
received by Lender concurrently therewith.
SECURITY. This Note is to be secured by, among other things, the Pledge
Agreements executed by Trautman Wasserman & Company, Incorporated and Dan Jensen
in favor of Lender.
COSTS AND EXPENSES. Borrower hereby agrees to pay any and all costs and/or
expenses paid and/or incurred by Lender by reason of, as a result of, or in
connection with, this Note, the Pledge Agreements and/or the other Documents,
including, but not limited to, any and all attorneys' fees and related costs
whether such costs and/or expenses are paid or incurred in connection with the
enforcement of this Note, the Pledge Agreements, and/or the other Documents, or
any of them, the protection and/or preservation of the collateral or security
for this Note and/or any other rights, remedies and/or interests of Lender,
whether or not suit is filed. Borrower's agreement to pay any and all such costs
and expenses includes, but is not limited to, costs and expenses incurred in
enforcing any judgment obtained by Lender and in connection with any and all
appeals therefrom.
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All such costs and expenses are immediately due and payable to Lender by
Borrower, whether or not demand therefor is made by Lender.
WAIVERS. Borrower hereby waives grace, diligence, presentment, demand, notice of
demand, dishonor, notice of dishonor, protest, notice of protest, any and all
exemption rights against the indebtedness evidenced by this Note and the right
to plead any statute of limitations as a defense to the repayment of all or any
portion of this Note, and interest thereon, to the fullest extent allowed by
law. No delay, omission and/or failure on the part of Lender in exercising any
right and/or remedy hereunder shall operate as a waiver of such right and/or
remedy or of any other right and/or remedy of Lender.
MAXIMUM LEGAL RATE. This Note is subject to the express condition that at no
time shall Borrower be obligated, or required, to pay interest on the principal
balance at a rate which could subject Lender to either civil or criminal
liability as a result of such rate being in excess of the maximum rate which
Lender is permitted to charge. If, by the terms of this Note, Borrower is, at
any time, required or obligated to pay interest on the principal balance at a
rate in excess of such maximum rate, then the rate of interest under this Note
shall be deemed to be immediately reduced to such maximum rate, and interest
payable hereunder shall be computed at such maximum rate, and any portion of all
prior interest payments in excess of such maximum rate shall be applied, and/or
shall retroactively be deemed to have been payments made, in reduction of the
principal balance.
AMENDMENT; GOVERNING LAW. This Note may be amended, changed, modified,
terminated and/or canceled only by a written agreement signed by the party
against whom enforcement is sought for any such action. This Note shall be
governed by, and construed under, the laws of the United States of America and,
to the extent not inconsistent therewith, the laws of the State of Washington.
AUTHORITY. Borrower, and each person executing this Note on Borrower's behalf,
hereby represents and warrants to Lender that, by its execution below, Borrower
has the full power, authority and legal right to execute and deliver this Note
and that the indebtedness evidenced hereby constitutes a valid and binding
obligation of Borrower without exception or limitation. In the event that this
Note is executed by more than one person or entity, the liability hereunder
shall be joint and several.
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IN WITNESS WHEREOF, Borrower has executed this Note on the day and year first
above written.
BORROWER:
JIA, INC.,
a Washington corporation
By:
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Name:
Its:
By:
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Name:
Its:
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