100,000.00 February 28, 2005
EXHIBIT
10.3
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$100,000.00
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February
28, 2005
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FOR
VALUE RECEIVED, Brownshire
Holdings, Inc.,
a
Nevada corporation (the “Borrower”), hereby promises to pay to the order of
GDSC
Acquisitions, LLC
or its
successors or assigns (“Lender”), at the office of Lender located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal amount of
$100,000.00, or such lesser principal amount as shall be outstanding from time
to time under this note (“Note”), as reflected in the books and records of
▇▇▇▇▇▇, together with interest on the principal balance from time to time
outstanding hereunder from (and including) the date of disbursement until (but
not including) the date of payment, at a per annum rate equal to the “Stated
Interest Rate” specified below or, to the extent applicable, the “Default
Interest Rate” specified below, in accordance with the following terms and
conditions:
1. Contracted
For Rate of Interest.
The
contracted for rate of interest of the indebtedness evidenced hereby, without
limitation, shall consist of the following:
(a) Stated
Interest Rate.
The
“Stated Interest Rate” shall equal 4.0% per annum, calculated daily on the basis
of actual days elapsed over a 360-day year, applied to the principal balance
from time to time outstanding hereunder.
(b) Default
Interest Rate. The
“Default Interest Rate” shall be a per annum rate equal to the Stated Interest
Rate plus 2.0 percentage points, calculated daily on the basis of actual days
elapsed over a 360-day year, applied to the principal balance from time to
time
outstanding hereunder. The principal balance outstanding hereunder from time
to
time shall bear interest at the Default Interest Rate from the date of the
occurrence of an Event of Default (as hereinafter defined) hereunder until
the
earlier of (i) the date on which the principal balance outstanding hereunder,
together with all accrued interest and other amounts payable hereunder, are
paid
in full; or (ii) the date on which such Event of Default is timely cured in
a
manner satisfactory to Lender (A) if Borrower is specifically granted a right
to
cure such Event of Default, or (B) if no such right to cure is specifically
granted, then as and to the extent that Lender, in its sole and absolute
discretion, permits such Event of Default to be cured.
2. Principal
Balance. The
principal balance outstanding hereunder at any time shall be the total amount
of
advances made hereunder by ▇▇▇▇▇▇, less the total amount of repayments of
principal hereon, as reflected in the books and records of Lender with respect
to the indebtedness evidenced hereby. The principal balance outstanding at
any
time hereunder shall not exceed the principal amount first set forth
above.
3. Revolving
Credit; No Commitment.
▇▇▇▇▇▇
may make advances to Borrower from time to time hereunder, which advances will
be of a revolving nature and may be made, repaid, and made from time to time.
The Borrower and ▇▇▇▇▇▇ contemplate a series of discretionary advances as
provided herein even if the principal balance outstanding hereunder has
previously been reduced to zero. The Borrower acknowledges and agrees that
(a)
▇▇▇▇▇▇ has not entered into any commitment with ▇▇▇▇▇▇▇▇ for the making of
advances hereunder; (b) ▇▇▇▇▇▇▇▇ is not relying, and will not rely, upon ▇▇▇▇▇▇
to make any advances hereunder; and (c) any advance hereunder requested by
▇▇▇▇▇▇▇▇ shall be made, or not made, at the election of ▇▇▇▇▇▇, in its sole
and
absolute discretion, irrespective of whether or not an Event of Default has
occurred.
4. Requests
for Advances.
Advances
hereunder may be made by ▇▇▇▇▇▇ from time to time upon the oral or written
request of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇ on behalf of ▇▇▇▇▇▇▇▇. Any
advance hereunder shall be deemed to have been made to or for the benefit of
Borrower when made pursuant to the oral or written request of the aforenamed
individuals.
5. Payments.
The
outstanding principal sum of this Note, together with all accrued but unpaid
interest due hereunder, shall be due and payable upon the earlier to occur
of
(a) a “Liquidity Event” (as described below) or (b) February 28, 2007. Payment
of the principal of and interest on this Note is to be made at the offices
of
Lender or such other place as Lender shall designate in writing to Borrower.
For
purposes of this Note, a “Liquidity Event” shall be deemed to have occurred upon
the occurrence of any of the following events:
(a) the
closing of the sale or other issuance of voting securities of Borrower (or
securities convertible, exercisable, or exchangeable into voting securities
of
Borrower) as the result of which the stockholders of Borrower immediately prior
to such sale or issuance own, in the aggregate, less than 50% of the outstanding
voting securities of Borrower (assuming the immediate conversion, exercise,
or
exchange of convertible, exercisable, or exchangeable securities);
(b) Borrower
is merged, consolidated, or consummates a reorganization transaction with
another entity in a transaction in which Borrower is not the surviving entity
and, as the result of such merger, consolidation, or reorganization, the
stockholders of Borrower immediately prior to such transaction own, in the
aggregate, less than 50% of the outstanding voting securities of the surviving
or resulting entity;
(c) Borrower
transfers all or substantially all of its assets to another person or entity
that is not a parent company or wholly owned subsidiary of
Borrower;
(d) the
closing of a firmly underwritten public offering of Borrower common stock or
securities exercisable or convertible into shares of Borrower common stock;
or
(e) the
liquidation, dissolution, or winding up of Borrower or the reorganization of
Borrower under any federal or state bankruptcy laws.
6.
Application of Payments.
Payments
received by Lender with respect to the indebtedness evidenced hereby shall
be
applied in such order and manner as Lender in its sole and absolute discretion
may elect. Unless otherwise elected by ▇▇▇▇▇▇, all such payments shall first
be
applied to accrued and unpaid interest at the Stated Interest Rate and, to
the
extent applicable, the Default Interest Rate, and next to the principal balance
then outstanding hereunder.
7. Prepayments.
Payments
of principal hereof may be made at any time, or from time to time, in whole
or
in part, without penalty, provided that all previously matured interest and
other charges accrued to the date of prepayment are also paid in full.
Notwithstanding any prepayment of principal hereof, (a) there will be no change
in the maturity date or amount of payments due hereunder unless ▇▇▇▇▇▇, in
its
sole and absolute discretion, agrees in writing to such change; and (b)
Borrower’s obligations hereunder shall continue in effect, and this Note shall
remain outstanding, unless and until the principal balance outstanding
hereunder, together with all accrued interest and other amounts payable
hereunder are paid in full and thereafter, upon ▇▇▇▇▇▇▇▇’s request, ▇▇▇▇▇▇
delivers to Borrower the original executed copy of this Note, marked
“cancelled.”
8. Events
of Default; Acceleration.
The
occurrence of any one or more of the following events shall constitute an “Event
of Default” hereunder, and upon such Event of Default the entire principal
balance outstanding hereunder, together with all accrued interest and other
amounts payable hereunder, at the election of ▇▇▇▇▇▇, shall become immediately
due and payable, without any notice to Borrower:
(a) Nonpayment
of principal, interest or other amounts when the same shall become due and
payable hereunder, and ▇▇▇▇▇▇▇▇ does not cure such failure to pay within three
business days after the date such payment is due;
(b) The
failure of Borrower to comply with any other provision of this Note;
(c) The
calling of a meeting of the creditors of Borrower or any other person or entity
who is or may become liable hereunder;
(d) The
making by Borrower or any other person or entity who is or may become liable
hereunder of an assignment for the benefit of its creditors; or
(e) The
appointment of (or application for appointment of) a receiver of Borrower or
any
other person or entity who is or may become liable hereunder; or the involuntary
filing against or voluntary filing by ▇▇▇▇▇▇▇▇, or any other person or entity
who is or may become liable hereunder, of a petition or application for relief
under federal bankruptcy law or any similar state or federal law, which is
not
stayed or dismissed within 90 days of filing; or the issuance of any writ of
garnishment, execution or attachment for service with respect to Borrower or
any
person or entity who is or may become liable hereunder or any property of
Borrower or property of any person or entity who is or may become liable
hereunder.
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9. Additional
Sums.
All
fees, charges, goods, things in action or any other sums or things of value,
other than the interest resulting from the Stated Interest Rate and the Default
Interest Rate, as applicable, paid or payable by Borrower (collectively, the
“Additional Sums”), whether pursuant to this Note or any other document or
instrument in any way pertaining to this transaction, or otherwise with respect
to this transaction, that, under the laws of the State of Illinois, may be
deemed to be interest with respect to this transaction, for the purpose of
any
laws of the State of Illinois that may limit the maximum amount of interest
to
be charged with respect to this transaction, shall be payable by Borrower as,
and shall be deemed to be, additional interest, and for such purposes only,
the
agreed upon and “contracted for rate of interest” of this transaction shall be
deemed to be increased by the rate of interest resulting from the Additional
Sums. ▇▇▇▇▇▇▇▇ understands and believes that this transaction complies with
the
usury laws of the State of Illinois; however, if any interest or other charges
in connection with this transaction are ever determined to exceed the maximum
amount permitted by law, then ▇▇▇▇▇▇▇▇ agrees that (a) the amount of interest
or
charges payable pursuant to this transaction shall be reduced to the maximum
amount permitted by law; and (b) any excess amount previously collected from
Borrower in connection with this transaction that exceeded the maximum amount
permitted by law, will be credited against the principal balance then
outstanding hereunder. If the outstanding principal balance hereunder has been
paid in full, the excess amount paid will be refunded to Borrower.
10. Waivers.
Except
as set forth in this Note, to the extent permitted by applicable law, Borrower,
and each person who is or may become liable hereunder, severally waive and
agree
not to assert (a) demand, diligence, grace, presentment for payment, protest,
notice of nonpayment, nonperformance, extension, dishonor, maturity, protest
and
default; and (b) recourse to guaranty or suretyship defenses (including, without
limitation, the right to require the Lender to bring an action on this Note).
Lender may extend the time for payment of or renew this Note, or release any
party from liability hereunder, and any such extension, renewal, release or
other indulgence shall not alter or diminish the liability of Borrower or any
other person or entity who is or may become liable on this Note except to the
extent expressly set forth in a writing evidencing or constituting such
extension, renewal, release or other indulgence. No delay or failure of Lender
in exercising any right hereunder shall affect such right, nor shall any single
or partial exercise of any right preclude further exercise thereof.
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11.
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Miscellaneous.
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(a) Severability.
If any
provision hereof is invalid or unenforceable, the other provisions hereof shall
remain in full force and effect and shall be construed so as to effectuate
the
other provisions hereof.
(b) Amendment.
This
Note may not be changed, modified or terminated, nor may any provision of this
Note be waived except by an agreement in writing signed by the party to be
charged.
(c) Binding
Nature of Agreement; Assignment.
The
provisions of this Note shall be binding upon the Lender and Borrower, and
shall
inure to the benefit of and bind the respective successors and assigns of the
Lender and Borrower. Neither Borrower nor the Lender may assign or transfer
this
Note or assign or delegate any of his or its respective rights or obligations
hereunder without the prior written consent of the other party in each instance.
(d) Collection
Costs and Expenses.
If this
Note shall be placed in the hands of an attorney for collection, by suit or
otherwise, then ▇▇▇▇▇▇▇▇’s obligations hereunder shall include the payment of
all reasonable collection costs and expenses incurred by the Lender in
connection therewith, including, without limitation, reasonable attorneys’ fees
and costs.
(e) Time
of Essence.
Time is
of the essence of this Note and each and every provision
hereof.
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(f) Controlling
Law.
This
Note and all questions relating to its validity, interpretation, performance,
and enforcement shall be governed by and construed in accordance with the laws
of the State of Illinois, notwithstanding any Illinois or other conflict-of-law
provisions to the contrary.
(g) Notices.
All
notices, requests, demands and other communications required or permitted under
this Agreement shall be in writing and shall be deemed to have been duly given,
made, and received (i) when delivered against receipt; (ii) one day following
the day of deposit thereof, with delivery charges prepaid, with a national
overnight delivery service; or (iii) three days following the day of deposit
thereof, with postage prepaid, with the United States Postal Service, by regular
first class, certified or registered mail, in each case addressed as set forth
below:
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(i)
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If
to Borrower:
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▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Suite
200
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Highland
Park, Illinois 60035
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Attention:
President
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(ii)
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If
to the Lender:
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▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Suite
200
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Highland
Park, Illinois 60035
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Attention:
President
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Either
party may alter the address to which communications or copies are to be sent
by
giving notice of such change of address in conformity with the provisions of
this paragraph for the giving of notice.
(h) Paragraph
Headings.
The
paragraph headings in this Note are for convenience only; they form no part
of
this Note and shall not affect its interpretation.
(i) Number
of Days.
In
computing the number of days for purposes of this Note, all days shall be
counted, including Saturdays, Sundays and holidays; provided, however, that
if
the final day of any time period falls on a Saturday, Sunday or holiday, then
the final day shall be deemed to be the next day which is not a Saturday, Sunday
or holiday.
(j) Loss
or Destruction of Note.
Upon
receipt by Borrower of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Note, or in the case of loss, theft or
destruction of an indemnity satisfactory to it, and in the case of mutilation,
upon surrender and cancellation of this Note, ▇▇▇▇▇▇▇▇ shall execute and deliver
a new Note on like tenor and date.
IN
WITNESS WHEREOF,
▇▇▇▇▇▇▇▇ has caused this Note to be duly executed as of the date first set
forth
above.
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Its:
President
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