EXHIBIT 10.2
SECURED PROMISSORY NOTE
Due February 19, 2005
SBS Interactive, Co.
Issued: November 19, 2004 $50,000
FOR VALUE RECEIVED, the undersigned SBS Interactive, Co. (hereinafter,
together with any successor, referred to as the "Company"), hereby promises to
pay to Trilogy Capital Partners, Inc. (hereinafter, together with any successor
or assign, referred to as the "Holder"), the principal sum of Fifty Thousand
Dollars ($50,000) or such lesser amount as shall be advanced by Holder on behalf
of the Company from time to time or contemplated under the heading of "Marketing
Budget" of that certain Letter of Engagement dated as November 19, 2004 between
Company and Holder (the "Letter of Engagement"), together with interest thereon,
at the rate of 10% per annum, payable on the terms set forth below.
1. Payments
1.1 Interest. Interest shall accrue and be payable in arrears on the
Maturity Date.
1.2 Principal. Principal shall be due and payable on the Maturity Date.
1.3 Place of Payment. The Company shall pay principal and interest in
United States dollars to the Holder at the Holder's address for notices or such
other address at the Holder may designate in writing.
2. Maturity. The "Maturity Date" of this Secured Note is earliest to occur
of: (A) February 19, 2005; (B) the date of the closing of (i) the Company's
first sale and issuance following the date hereof of shares of its capital
stock, or securities convertible into or exchangeable for capital stock, in a
transaction in which the gross cash proceeds to the Company equal or exceed
$100,000 in the aggregate, (ii) the merger or consolidation of the Company with
or into another Person, or (iii) the sale, transfer or assignment of all or
substantially all of the assets of the Company to another Person; or (C) upon
acceleration of the Maturity Date as provided in Section 5.2 of this Secured
Note; provided, however, that for purposes of clause (B)(i) of this Section 2,
any funds loaned to the Company by Arthur Cohn and evidenced by an instrument
convertible into or exchangeable for capital stock of the Company, any
conversion of indebtedness to Arthur Cohn into capital stock of the Company, and
any repayment by the Company of outstanding indebtedness to Arthur Cohn in the
form of shares of capital stock of the Company or securities convertible into or
exchangeable for capital stock of the Company, shall not be deemed a transaction
for the purposes of clause (B)(i) of this Section 2. For purposes of this
Secured Note, "Person" shall mean any individual, partnership, corporation,
trust, association or other entity.
3. Successor Corporation
3.1 When Company May Merge, Etc. The Company may not, in a single
transaction or through a series of related transactions, consolidate with or
merge with or into any other person, or, directly or indirectly, sell, lease,
assign, transfer or convey (by way of liquidation, dissolution, winding up, or
otherwise) all or substantially all of its properties and assets as an entirety
or substantially as an entirety (computed on a consolidated basis) to another
person or group or affiliated persons, unless the Company shall be the
continuing person, or the person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which all or
substantially all of the properties and assets of the Company are transferred as
an entirety or substantially as an entirety (the Company or such other person
being hereinafter referred to as the "Surviving Person") shall be an entity
organized and validly existing under the laws of the United States, any State
thereof or the District of Columbia, and shall expressly assume in writing all
the obligations of the Company under this Secured Note.
3.2 Successor Corporation Substituted. Upon any consolidation or
merger, or any transfer of assets in accordance with Section 3.1, the Surviving
Person formed by such consolidation or into which the Company is merged or to
which such transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Secured Note with the
same effect as if such Surviving Person had been named as the Company herein.
4. Security
4.1 Security Interest. SBS Interactive, Inc., the Company's subsidiary
and signatory hereto (the "Subsidiary"), acknowledges that it shall be a
beneficiary of the funds advanced by Holder on behalf of the Company secured
hereunder. In consideration thereof, the Subsidiary and the Company hereby grant
to, and create in favor of, Holder a continuing security interest in and lien
upon, and hereby pledges to Holder, all of Company's and Subsidiary's respective
right, title and interest in and to all of their respective tangible or
intangible assets and property of any kind, except real property other than
fixtures, no matter where now or hereafter located or existing and whether such
assets and property are now owned or hereafter acquired or created, all
accessions, additions, improvements, replacements and substitutions thereto, all
books, records and software related thereto (whether computer-stored or
otherwise), and any all proceeds or products of any of the foregoing (all the
foregoing, collectively, the "Collateral"). Holder is hereby authorized by the
Company and Subsidiary to file one or more financing or continuation statements
and amendments thereto relating to the Collateral, without Company's or
Subsidiary's signature where permitted by law.
4.2 Security for Obligations. The security interests granted to Holder
in the Collateral herein pursuant to Section 4.1, and the assignments of the
Collateral to Holder made hereby, secure the full and timely performance of any
and all of the obligations or debts (whether contingent or otherwise, whether as
stated maturity, by acceleration or otherwise, and whether presently existing or
hereafter created) now or hereafter owed to Holder (collectively, the
"Obligations") pursuant to this Secured Note including, without limitation,
payment of principal, interest, expenses (including, without limitation,
attorneys' fees and expenses incidental to collection or otherwise) and other
amounts due hereunder, whether accrued before or after judgment or the
commencement of any case in respect of any Person under the United States
Bankruptcy Code.
4.3 Subordination. The Obligations hereunder are subordinated to
certain obligations of Company and Subsidiary to Arthur Cohn to the extent and
as set forth in that certain Subordination Agreement dated as of the date hereof
by and among Arthur Cohn, the Company, the Subsidiary and Holder.
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4.4 Representations and Warranties. Company and Subsidiary represent
and warrant that the following statements are true and correct:
4.4.1 Assuming the filing of a UCC financing statement covering
the Collateral in the Office of the Secretary of State of Florida, this Secured
Note creates a valid security interest in all of the Collateral of the Company
and secures the Company's performance of the Obligations; and no other action is
necessary to perfect or maintain the perfection of such security interest in
favor of Holder except for the periodic filing of such UCC continuation
statements as may be required by law.
4.4.2 Assuming the filing of a UCC financing statement covering
the Collateral in the Office of the Secretary of State of Nevada, this Secured
Note creates a valid security interest in all of the Collateral of the
Subsidiary and secures the Subsidiary's performance of the Obligations; and no
other action is necessary to perfect or maintain the perfection of such security
interest in favor of Holder except for the periodic filing of such UCC
continuation statements as may be required by law.
4.4.3 No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body (including,
without limitation, any court) is required, except (i) such authorization or
approval as has already been obtained and (ii) the filing of the UCC financing
statement described in subsections 4.4.1 and 4.4.2 above, either for the grant
by Company and Subsidiary of the security interests granted hereby or for the
execution, delivery or performance of this Secured Note by Company and
Subsidiary, or for the perfection of, or the exercise by, Holder of its rights
and remedies hereunder.
4.4.4 The execution and delivery of this Secured Note, the filing
of the financing statements provided for herein and the taking of any other
action required or contemplated hereby shall not cause a default or event of
default under any other agreement or commitment to which Company is a party or
by which it is bound.
4.4.5 The Collateral is not subject to any encumbrance, and no
party possesses any security interest thereon (other than for purchase money
security interests in the ordinary course of business), except as provided in
Section 4.3 hereof.
4.5 Covenants. Company and Subsidiary shall, at their expense:
4.5.1 Promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that Holder may reasonably request, in order to perfect, protect and/or maintain
the security interest granted or purported to be granted herein in the
Collateral or to enable Holder to exercise and enforce its rights and remedies
hereunder with respect to any Collateral, including, without limitation,
executing, delivering and/or filing, as the case may be, and obtaining the
execution and delivery by third parties of, UCC financing or continuation
statements or amendments thereto, and other agreements, instruments, bulk sales
or other notices.
4.5.2 Perform all acts necessary to maintain, preserve, and
protect the Collateral, and not encumber the Collateral in any way or grant any
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security interest thereon (other than for purchase money security interests in
the ordinary course of business), except as provided in Section 4.3 hereof.
5. Events of Default and Remedies
5.1 Events of Default. "Event of Default," wherever used herein, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be caused voluntarily or involuntarily or effected, without
limitation, by operation of law or pursuant to any judgment, decree or order of
any court of any order, rule or regulation of any administrative or governmental
body):
5.1.1 default in the payment of any principal or interest upon
this Secured Note as and when the same becomes due and payable;
5.1.2 default by the Company or Subsidiary under any of its
covenants under this Secured Note, which default is not cured within 8 days
after receipt of written notice of such default delivered to the Company or
Subsidiary by the Holder;
5.1.3 breach in any material respect by the Company of any of its
obligations under the Letter of Engagement;
5.1.4 a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or Subsidiary as
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization of the Company or Subsidiary under any bankruptcy or similar law,
and such decree of order shall have continued undischarged and unstayed for a
period of 60 days; or a decree or order of a court of competent jurisdiction
ordering the appointment of a receiver, liquidator, trustee, or assignee in
bankruptcy or insolvency of the Company or Subsidiary, or for the winding up or
liquidation of the affairs of the Company or Subsidiary, shall have been
entered, and such decree, judgment, or order shall have remained in force
undischarged and unstayed for a period of 60 days;
5.1.5 the Company or Subsidiary shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under any bankruptcy or similar law or similar statute, or shall
consent to the filing of any such petition, or shall consent to the appointment
of a custodian, receiver, liquidator, trustee, or assignee in bankruptcy or
insolvency of it or any of its assets or property, or shall make a general
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due.
5.2 Acceleration of Maturity Date; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Section 5.1.4 or
5.1.5) occurs and is continuing, then, and in every such case, unless the
principal of this Secured Note shall have already become due and payable, the
Holder by a notice in writing to the Company (an "Acceleration Notice"), may
declare all of the principal of this Secured Note, together with accrued
interest thereon, to be due and payable immediately. If an Event of Default
specified in Section 5.1.4 or 5.1.5 occurs, all principal of and accrued
interest on this Secured Note ipso facto shall become and be immediately due and
payable without any declaration or other act on the part of the Holder.
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5.3 Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
note, no right or remedy herein conferred upon or reserved to the Holder is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
5.4 Waiver. No delay or omission by the Holder to exercise any right or
remedy arising upon any Event of Default shall impair the exercise of any such
right or remedy or constitute a waiver of any such Event of Default. Every right
and remedy given by this Section 5 or by law to the Holder may be exercised from
time to time, and as often as may be deemed expedient, by the Holder. No
provision of this Secured Note may be waived unless in writing signed by Holder,
and waiver of any one provision of this Secured Note shall not be deemed to be a
waiver of any other provision. 6. Replacement Note. If this Secured Note is
mutilated and surrendered to the Company or if the Holder claims and submits an
affidavit or other evidence, satisfactory to the Company, to the Company to the
effect that this Secured Note has been lost, destroyed or wrongfully taken, the
Company shall issue a replacement note if the Company's reasonable requirements
are met, including, if required by the Company, provision by the Holder of
indemnity, sufficient in the judgment of the Company, to protect the Company
from any loss which it may suffer if this Secured Note is replaced.
7. Miscellaneous
7.1 Successors. The terms and conditions of this Secured Note shall be
binding upon and inure to the benefit of the parties to this Secured Note and
their respective successors, heirs and personal representatives.
7.2 Assignment. Neither the Company nor the Subsidiary may assign this
Secured Note, and any attempted or purported assignment or any delegation of
their respective duties or obligations arising under this Secured Note to any
Person shall be deemed to be null and void, and shall constitute a material
breach by the Company or Subsidiary of its duties and obligations under this
Secured Note.
7.3 Governing Law. This Secured Note has been made and entered into in
the State of California and shall be construed in accordance with the laws of
the State of California without giving effect to the principles of conflicts of
law thereof.
7.4 Captions. The various captions of this Secured Note are for
reference only and shall not be considered or referred to in resolving questions
of interpretation of this Secured Note.
7.5 Notices. Any notice, authorization, request or demand required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given when received by an overnight delivery service or when sent by
facsimile addressed as follows:
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To the Company:
SBS Interactive, Co.
4211 Yonge Street, Suite 235
Toronto, Ontario, Canada M2P 2A9
Fax: (416) 223-9293
Attn: Todd Gotlieb, President
To the Holder:
Trilogy Capital Partners, Inc.
1901 Avenue of the Stars, Suite 1060
Los Angeles, California 90067
Fax: (509) 694-8692
Attn: Alfonso J. Cervantes, President
7.6 Severability. Whenever possible each provision of this Secured Note
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Secured Note shall be or become
prohibited or invalid under applicable 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 Secured Note.
7.7 Attorneys' Fees. If any action, suit, arbitration or other
proceeding is instituted to remedy, prevent or obtain relief from a default in
the performance by any party to this Secured Note of its obligations under this
Secured Note, the prevailing party shall recover all of such party's attorneys'
fees incurred in each and every such action, suit, arbitration or other
proceeding, including any and all appeals or petitions therefrom. As used in
this Section, attorneys' fees shall be deemed to mean the full and actual costs
of any legal services actually performed in connection with the matters involved
calculated on the basis of the usual fee charged by the attorney performing such
services and shall not be limited to "reasonable attorneys' fees" as defined in
any statute or rule of court.
7.8 Noncircumvention. Neither the Company nor Subsidiary will, by
amendment of its charter or through reorganization, consolidation, merger,
dissolution, sale of assets or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Secured Note,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder of this Secured Note against impairment.
7.9 Waiver of Demand for Payment, etc. The Company waives demand for
payment, presentment for payment, protest, notice of protest, notice of
dishonor, notice of nonpayment, notice of acceleration of maturity and diligence
in taking any action to collect sums owing hereunder.
(signature page follows)
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IN WITNESS WHEREOF, the signatories hereto have caused this Secured
Note to be executed and issued on their behalf by the officers thereto duly
authorized.
SBS INTERACTIVE, CO.
a Florida corporation
By: /s/ Todd Gotlieb
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Todd Gotlieb, President
SBS INTERACTIVE, INC.
a Nevada corporation
By: /s/ Todd Gotlieb
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Todd Gotlieb, President
Accepted and Agreed:
Trilogy Capital Partners, Inc.
By: /s/ Alfonso J. Cervantes
---------------------------------
Alfonso J. Cervantes, President
Signature Page to Secured Promissory Note