PROMISSORY NOTE
OF
APTUS CORP.
Tacoma, Washington
$15,000.00 January 29, 2004
FOR VALUE RECEIVED, Aptus Corp., a Delaware corporation,
(including any successor or assign thereof, including, without limitation, a
receiver, trustee or debtor-in-possession, "MAKER"), hereby promises to pay to
the order of Norman Dyer ("PAYEE") the sum of up to FIFTEEN THOUSAND DOLLARS AND
00/CENTS ($15,000.00) on the date set forth below.
1. PAYMENT OF PRINCIPAL; ADVANCES.
(a) The outstanding principal amount of this Note, together
with all interest accrued hereon, shall be due and payable on July 10, 2004 (the
"MATURITY DATE").
2. PAYMENT OF INTEREST. Interest shall be payable on the
Maturity Date and shall accrue on the outstanding principal hereunder at the
rate of prime plus 1% per annum based on a 365-day year.
3. TERMS OF PAYMENT. Subject to prepayments made pursuant to
Section 4 hereunder, the amount outstanding under this Note shall become due and
payable on the Maturity Date. This amount consists of the principal amount
outstanding plus the interest accrued from the date hereof up to and including
the Maturity Date.
4. PREPAYMENT. Maker may, at its option at any time and from
time to time hereafter, prepay, in whole or in part, without premium or penalty,
the outstanding principal amount of this Note, together with accrued but unpaid
interest on such principal amount to the date of prepayment.
5. ASSIGNABILITY; TRANSFERRABILITY.
(a) This Note is freely transferrable and assignable by Payee,
and does not require the consent of Maker, only where the Note is assigned to a
family member or affiliate of Payee without payment of consideration.
6. SECURED FINANCINGS. Maker shall not grant any of its assets
as collateral to secure its debt in any future financings (other than to vendors
when the collateral is the asset(s) purchased from that vendor) without
obtaining the prior written consent from the Payee hereunder.
7. DEFAULTS; CONSEQUENCES OF DEFAULT.
(a) DEFAULTS. Maker shall be deemed in default hereunder upon
the occurrence of any of the following (a "DEFAULT"):
(i) FAILURE TO PAY PRINCIPAL OR INTEREST: The failure
of Maker to pay, when due, all or any part of any principal, interest
or other payment required to be made hereunder and continuance of such
failure for thirty (30) business days after written notice thereof to
Maker from Payee;
(ii) FAILURE TO PERFORM OTHER PROVISIONS: Maker
fails to perform or observe any other provision contained herein and
continuance of such failure for thirty (30) business days after written
notice thereof to Maker from Payee; or
(iii) BANKRUPTCY, ETC.: Maker has entered against it
by a court having jurisdiction thereof a decree or order for relief in
respect to Maker in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or a receiver, liquidator, assignee, custodian, trustee or other
similar official is appointed for Maker or for any substantial part of
Maker's property, or the winding up or liquidation of Maker's affairs
is ordered; or Maker commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consents to the entry of an order for such relief in an involuntary
case under any such law, or any such involuntary case is commenced and
is not dismissed within sixty (60) days, or Maker consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or other similar official for Maker or for
any substantial part of Maker's property, or makes any general
assignment for the benefit of creditors.
(b) CONSEQUENCES OF DEFAULT. Upon the occurrence of a Default
of the type described in Section 6(a) above, the aggregate principal amount of
the Note (together with all accrued interest thereon and all other amounts
payable in connection therewith) shall become immediately due and payable
without any action on the part of the holder of the Note.
8. MISCELLANEOUS.
(a) Principal and interest due hereunder shall be payable in
lawful money of the United States of America and shall be payable to Payee at
the principal offices of Maker, or at such other address as may be specified in
a written notice to Maker given by Payee.
(b) If any payment on this Note shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in
computing interest in connection with payment. The term "BUSINESS DAY" as used
herein means any day other than Saturday or Sunday or a public holiday under the
laws of the State of Washington or other day on which banking institutions are
authorized or obligated to close in the City of Tacoma in the State of
Washington as of the date of determination.
(c) No delay or omission on the part of Payee in the exercise
of any right or remedy hereunder shall operate as a waiver thereof and no
partial exercise of any right or remedy precludes other or further exercise
thereof or the exercise of any other rights or remedy.
(d) Maker agrees to pay on demand all reasonable costs and
expenses, including reasonable attorneys' fees, incurred by Payee in enforcing
this Note.
(e) Maker hereby waives presentment, protest and demand,
notice of protest, demand and dishonor and nonpayment of this Note.
(f) Anything in this Note to the contrary notwithstanding,
this Note shall be binding on any successors and assigns of the holder of this
Note and Maker.
(g) Anything in this Note to the contrary notwithstanding,
payments under this Note shall not be deferred beyond any date if deferral
beyond such date would result in this Note (or any note in respect of which,
directly or indirectly, this Note was issued) being treated as an "APPLICABLE
HIGH YIELD DISCOUNT OBLIGATION" under Section 163(e)(5) and Section 163(i) of
the Internal Revenue Code of 1986, as amended (the "Code"). The preceding
sentence shall apply only to the extent necessary to achieve the objective
herein described and shall apply only to amounts treated as interest or original
issue discount under the Code.
(h) Upon receipt of evidence reasonably satisfactory to the
Maker of the mutilation, destruction, loss or theft of the Note and the
ownership thereof, and, in the case of any such mutilation, upon surrender and
cancellation of this Note, the Maker shall, upon the written request of the
holder of the Note, execute and deliver in replacement thereof a new Note in the
same form, in the same original principal amount and dated the same date as the
Note so mutilated, destroyed, lost or stolen, and such Note so mutilated,
destroyed, lost or stolen shall then be deemed no longer outstanding hereunder.
(i) Except as otherwise expressly provided herein, the
provisions of the Note may be amended and Maker may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if Maker has obtained the written consent of the holder (plus all accrued
but unpaid interest) of the Note then outstanding; PROVIDED that without the
written consent of the holder of the Note no such action shall (i) reduce the
rate at which or change the manner in which interest accrues on the Note or the
times at which such interest becomes payable, or (ii) change any provision
relating to the scheduled payments or prepayments of principal on the Note.
(j) No remedy herein conferred upon the holder of this Note is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
(k) It is the intention of Maker and the holder of this Note
to conform to all applicable usury laws now and hereafter in force, and any
interest payable under this Note shall be subject to reduction to the amount not
in excess of the maximum legal amount allowed under the applicable usury laws as
now or hereafter construed by the courts having jurisdiction over such matters.
If the maturity of this Note is accelerated by reason of an election by the
holder hereof resulting from an occurrence of Default, voluntary prepayment by
Maker or otherwise, then earned interest may never include more than the maximum
amount permitted by law, computed from the date hereof until payment, and any
interest in excess of the maximum amount permitted by law shall be canceled
automatically and, if theretofore paid, shall at the option of the holder hereof
either be rebated to Maker or credited on the principal amount of this Note, or
if this Note has been paid, then the excess shall be rebated to Maker. The
aggregate of all interest (whether designated as interest, service charges,
points or otherwise) contracted for, chargeable or receivable under this Note
shall under no circumstances exceed the maximum legal rate upon the unpaid
principal balance of this Note remaining unpaid from time to time. If such
interest does exceed the maximum legal rate, it shall be canceled automatically
and, if theretofore paid, rebated to Maker or credited on the principal amount
of this Note, or if this Note has been repaid, then such excess shall be rebated
to Maker.
This Note shall be governed by and construed in accordance
with the domestic laws of the State of Washington, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
Washington or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Washington.
* * * * *
IN WITNESS WHEREOF, Maker has executed and delivered this Note
on the date first above written.
APTUS CORP.
By: /s/ John P. Gorst
John P. Gorst
Its: _____________________________________
Chief Executive Officer