Exhibit 10.103
Promissory Note with Amir Overseas Capital Corp. (dated September 18, 1998)
THIS PROMISSORY NOTE IS SUBJECT TO THAT CERTAIN INTERCREDITOR AND
SUBORDINATION AGREEMENT BETWEEN HOLDER AND FINOVA CAPITAL CORPORATION
SECURED SUBORDINATED PROMISSORY NOTE
$1,000,000.00 September 18, 1998
FOR VALUE RECEIVED, PLAY CO. TOYS & ENTERTAINMENT CORP., a Delaware
corporation, having an address of 550 Rancheros Drive, San Marcos, California
92069 ("Maker"), promises to pay to the order of AMIR OVERSEAS CAPITAL CORP.,
having an address Via Cantonale 116, Lugano, Switzerland CH690 ("Holder"), or at
such other place as may be designated in writing by any other holder hereof, the
sum of One Million and 00/100 ($1,000,000.00) Dollars ("Sum"), and interest
thereon at the rate of twelve (12%) percent per annum. The Sum shall be due and
payable as follows: Three Hundred Thirty Thousand and 00/100 ($330,000.00)
Dollars on November 30, 1998; Three Hundred Thirty Thousand and 00/100
($330,000.00) Dollars on December 14, 1998 and Three Hundred Forty Thousand and
00/100 ($340,000.00) Dollars plus all accrued interest on December 23, 1998.
Notwithstanding anything contained in this Promissory Note to the contrary,
any payments due and owing to the Holder under and pursuant to the terms and
conditions of this Promissory Note shall be paid in accordance with directions
given in writing to the Maker by the Holder not less than three (3) business
days prior to the date when such payment(s) are due, if and only in the event
that the Holder desires a payment to be made to a person, firm or entity other
than the Holder.
The Holder shall not by any act, delay, omission, or failure to act be
deemed to have waived any right, power, privilege or remedy hereunder, and no
waiver whatsoever shall be valid unless in writing and signed by the Holder, and
then only to the extent therein set forth; nor shall any single or partial
exercise of any right, power, privilege or remedy hereunder preclude any further
exercise thereof, or the exercise of any further right, power, privilege or
remedy. The rights and remedies herein provided are cumulative and not exclusive
of any rights or remedies provided by law and may be exercised singly or
concurrently. A waiver by the Holder of any right or remedy under the terms of
this Promissory Note, on any one occasion, shall not be construed as a bar to
any right or remedy which the Holder would otherwise have had on any future
occasion.
The entire outstanding balance of the principal amount and all accrued but
unpaid interest and late charges, if any, shall be become due and payable at the
option of Holder or any other holder hereof immediately upon the happening of
any of the following events ("Event of Default"):
a. a default in payment of any amount due pursuant to this Promissory Note
continuing beyond three (3) days after written notice of such default is given
by the Holder to the Maker; or
b. the filing of a petition in voluntary or involuntary bankruptcy by or
against Maker or any guarantor of this Promissory Note, the general assignment
for the benefit of creditors of Maker or any guarantor of this Promissory Note,
or the appointment of a receiver or trustee of any assets of Maker or any
guarantor of this Promissory Note; or
c. default in the Obligations of the Maker to FINOVA Capital Corporation or
Multimedia Concepts International, Inc. for borrowed money, which shall continue
for a period of seven (7) days after the expiration of any "cure period" or a
default of the Security Agreement securing this Promissory Note; or
d. default by Maker under any other note or security agreement between
itself and third parties which is senior in right to the rights of the Holder.
A late charge on any payments of principal and/or interest made more than
five (5) days after the due date thereof shall be paid at the rate of two (2.0%)
percent per month or portion thereof that said payment remains unpaid.
It is not intended hereby to charge interest at a rate in excess of the
maximum rate of interest permitted to be charged to Maker hereof under
applicable law, but if, notwithstanding, interest in excess of such maximum
legal rate shall be paid hereunder, the excess shall be retained by Payee or any
other holder of this Promissory Note as cash collateral for the payment of the
outstanding principal amount and may be applied to pay same.
The sums due pursuant to this Promissory Note are secured by a certain
Security Agreement dated of even date.
Maker hereby waives presentment for payment, demand, of non-payment and
dishonor, protest, of protest and any other that may be required under the law
in connection with enforcement of this Promissory Note.
Maker shall pay any and all expenses, including but not limited to
reasonable attorneys' fees, incurred by Payee or any other holder hereof in
seeking payment of amounts due pursuant to this Promissory Note, and Maker
hereby waives trial by jury in any litigation arising out of or in connection
with this Promissory Note.
This Promissory Note is non-negotiable. This Promissory Note may not be
modified or the face hereof canceled except in a writing, signed by Maker and by
Holder or any other holder of this Promissory Note. This Promissory Note shall
be interpreted and enforced in accordance with the laws of the State of Delaware
without regard to any principles of conflicts of law. The parties hereto hereby
consent to the jurisdiction of the Courts of the State of Delaware and of the
United States District Court for the District of Delaware in connection with any
and all actions commenced with respect to this Promissory Note and further
consent that any notice, process or notice of motion or other application to
either of said courts or judges thereof may be served in or out of the State or
District of Delaware by certified or registered mail return receipt requested,
or by personal service, provided a reasonable time for appearance is allowed, or
in such other manner as may be permitted by either of said courts.
The rights of the Holder under this Note shall be subordinate to:
a. any sums due or to become due to FINOVA Capital Corporation, its
successors or assigns pursuant to a certain Loan and Security Agreement dated as
of January 21, 1998 as may be amended from time to time;
b. the rights of any third party who hold valid, perfected security
interests on any of the assets of the Maker which are superior in right under
the Delaware Uniform Commercial Code to the rights of Holder.
PLAY CO. TOYS & ENTERTAINMENT CORP.
By