Exhibit 10.2 PROMISSORYNOTE

 

All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Termination Agreement to the Discount Factoring Agreement and Related Documents dated of even date herewith.

 

1. Payments. The principal amount due under this Note shall be payable by Borrower to Lender at the address above or at such other place as Lender may, from time to time, designate in writing, without setoff, counterclaim or any other deduction whatsoever, on or before June [__], 2011 (the “Maturity Date”). The principal amount of the Loan shall be subject to adjustment pursuant to the Termination Agreement of even date herewith or other related documents between Borrower and Lender.

 

2. Mechanism of Payments. Commencing 30 days after the date hereof and on the same day of each and every month thereafter, Borrower shall pay Lender in equal monthly installment of $10,000 per month for a period of 24 months (the “Monthly Installment”), which shall first be applied to interest and then in reduction of principal . In addition to the Monthly Installments, on or before June [__], 2010, Borrower shall pay Lender a lump sum amount of $100,000, and, on or before the Maturity Date, Borrow shall pay Lender the remaining principal amount of $160,000 and any and all accrued interest.

 

If the Borrower closes a financing, then up to fifty percent (50%) of any monies received in such a financing shall be paid to the Lender, as necessary to satisfy all obligations under this Note, as a payment under this Note and such payment shall apply against the amount outstanding under this Note to reduce the balance by first crediting each Monthly Installment and then applying any other amounts to the lump sum payments due under this Section 2.

 

4. Borrower hereby waives presentment and demand for payment, notice of dishonor, protest and notice of protest of this Note and agrees to pay all costs of collection when incurred, including reasonable attorneys' fees (which costs may be added to the amount due under this Note and be receivable therewith) and to perform and comply with each of the terms, covenants and provisions contained in this Note, on the part of Borrower to be observed or performed. No release of any security for the principal sum due under this Note or extension of time for payment of this Note, or any installment hereof, and no alteration, amendment or waiver of any provision of this Note made by agreement between Lender and any other person or party shall release, discharge, modify, change or affect the liability of Borrower under this Note.

 

5. 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 of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum rate which Borrower is permitted by law to contract or agree to pay. 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, 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 the portion of all prior interest payments in excess of such maximum rate shall be applied and shall be deemed to have been paid in reduction of the principal balance.

 

6. Borrower hereby irrevocably submits to the jurisdiction of any court of the State of New York or federal court sitting in the State of New York in any action or proceeding arising out of or relating to this Note. Borrower hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such court of the State of New York or, to the extent permitted by law, in such federal court. Borrower hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. To the extent permitted by law, Borrower also irrevocably consents to the service of any and all process in any such action or proceeding arising out of or in connection with this Note by the mailing (by certified mail, return receipt requested and postage prepaid) of copies of such process to the undersigned at the address of Borrower set forth above. Borrower agrees that a final and non-appealable judgment (or a judgment whose time to appeal has expired) in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

 

9.This Note may not be changed or terminated orally, but only by an agreement in writing signed by the party against whom enforcement of such change or termination is sought.

 

10. Borrower represents that Borrower has full power, authority and legal right to execute and deliver this Note and that the debt hereunder constitutes a valid and binding obligation of Borrower.