Promissory Note - CoActive Marketing Group Inc. and Paul A. Amershadian
AMENDED AND RESTATED PROMISSORY NOTE
As of May 24, 2001
$550,000 Great Neck, New York
FOR VALUE RECEIVED, Paul A. Amershadian, with an address at 39
Winged Foot Drive, Manalapan, New Jersey 07726 ("Maker") promises to pay to the
order of COACTIVE MARKETING GROUP, INC. ("Payee") at its principal office at 415
Northern Boulevard, Great Neck, New York 11021 or at any of its other offices as
Payee may designate by written notice to Maker, the sum of FIVE HUNDRED FIFTY
THOUSAND DOLLARS ($550,000), together with interest accrued thereon at the rate
and on the terms set forth below.
This Note amends and restates and has been delivered to Payee
in substitution for (i) that certain Promissory Note (the "1996 Note") in the
principal amount of $200,000, dated January 10, 1996, made by Maker in favor of
Inmark Services, Inc. ("Inmark"), and (ii) that certain Promissory Note in the
principal amount of $25,000, dated April 7, 1997, made by Maker in favor of
Inmark (the "1997 Note"). The 1996 Note and the 1997 Note and all amounts due
thereunder have been assigned by Inmark to Lender.
This Note evidences (x) loans by Inmark to Maker evidenced by
the 1996 Note and 1997 Note, in the outstanding principal amounts of $200,000
and $25,000, respectively, (y) an advance to Maker made on January 12, 2000, in
the principal amount of $25,000 and (z) loans made on the date hereof in the
principal amount of $300,000.
Maker acknowledges and agrees with Payee that Maker is also
obligated to repay Payee the additional amount of $119,299.00 in respect of
interest that has accrued to the date hereof on the loans and advances made
under clauses (i) and (ii) of the preceding paragraph and not been repaid (the
"Prior Accrued Interest").
Payments in respect of the principal amount of this Note and
all accrued and unpaid interest on this Note, including, without limitation, the
Prior Accrued Interest (collectively, the "Outstanding Obligations") shall be
made as follows:
(i) On the first day of each month, commencing July 2001,
Maker shall pay to Payee an amount equal to one-half
of the interest that has accrued on the outstanding
principal balance of this Note during the immediately
preceding calendar month;
(ii) In any year in which Maker receives a cash bonus (a
"Bonus") from Payee in connection with his employment
with Inmark (whether or not Maker has made any
voluntary prepayments under this Note) Maker
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shall pay to Payee, at the same time such Bonus is
paid to Maker, and Inmark may withhold from such
Bonus payment and pay to Payee, an amount equal to
one-half of the After Tax Bonus. "After Tax Bonus"
shall mean the gross amount of a Bonus, less (i)
federal, state and local income taxes payable in
respect of such Bonus, calculated based on the
average rate at which Maker's income was taxed by
federal, state and local taxing authorities in the
year immediately preceding the year in which the
Bonus is paid, and (ii) all amounts withheld by
Inmark with respect to such Bonus in respect of any
other taxes; and
(iii) The remaining unpaid portion of the Outstanding
Obligations, including, without limitation, the Prior
Accrued Interest, shall be due and payable in one
installment on the earlier to occur of (i) five years
from the date hereof or (ii) the consummation by
Payee of a merger, consolidation or a sale of all or
substantially all of its assets, other than a merger
or consolidation in which the stockholders of Payee
immediately prior to such transaction are holders of
at least a majority of the voting securities of the
surviving corporation immediately thereafter.
The outstanding principal amount of this Note shall bear
interest at a fluctuating rate equal to the highest rate at which Payee's loans
bear interest from time to time under that certain Credit Agreement dated as of
May 17, 2001 between European American Bank, Payee, Inmark, Optimum Group, Inc.
and U.S. Concepts, Inc. or under any succeeding senior credit facility.
Interest shall be calculated on the basis of a 360-day year
for actual days elapsed. In no event shall the interest rate applicable at any
time to this Note exceed the maximum rate permitted by law.
Maker agrees to apply the proceeds of the $300,000 loan made
on the date hereof as follows:
(i) $200,000 (or such greater amount as shall be
required) shall be used to repay Maker's indebtedness
to PNC Bank, National Association; and
(ii) The balance shall be used by Maker to pay such other
debts owed by Maker to other parties.
This Note may be prepaid in whole or in part at any time and
from time to time without premium or penalty. All payments (including
prepayments) on account of this Note shall be applied first to the payment of
accrued interest, including the Prior Accrued Interest, and then to the payment
of principal.
If any amount payable under this Note is due on a day on
which banks are required or authorized to close in New York City (any other day
being a "Business Day"), such
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payment may be made on the next succeeding Business Day and such additional time
shall be included in the computation of interest.
To secure all of Makers obligations under this Note, Maker
has (A) granted Payee (i) a first lien and security interest in the Security
Collateral, as such term is defined in the Amended and Restated Pledge Agreement
of even date herewith between Maker and Payee, and (ii) a lien and security
interest in certain real property located at 39 Winged Foot Drive, Manalapan,
New Jersey 07726, and (B) assigned to Payee certain life insurance policies.
The occurrence of any one or more of the following events
shall constitute an "Event of Default" under this Note: (i) if Maker shall fail
to pay when due any amount due under this Note and such failure shall not be
cured within ten days after the date such payment was due; (ii) Maker shall
commence any case, proceeding or other action under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to Maker, or seeking to adjudicate Maker a
bankrupt or insolvent or other relief with respect to Maker or any his debts, or
seeking appointment of a receiver, trustee, custodian or other similar official
for Maker or for all or any part of the assets of Maker, or Maker shall make a
general assignment for the benefit of his creditors, or there shall be commenced
against Maker any case, proceeding or other action of a nature referred to in
this clause (ii), or there shall be commenced against Maker any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
restraint or similar process against all or any substantial part of the assets
of Maker which results in the entry of an order for any such relief, or Maker
shall take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in this clause (ii), or Maker
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; (iii) Maker's employment with
Inmark shall terminate for any reason whatsoever, including by reason of Maker's
death; or (iv) Maker shall suffer a Disability. Maker shall be deemed to have
suffered a "Disability" if as a result of a physical or mental incapacity or
infirmity, Maker shall be unable to properly and fully perform his duties and
responsibilities as an employee of Inmark for periods aggregating at least 90
days during any period of 12 consecutive months or for any period of 60
consecutive days.
Upon the occurrence and during the continuance of an Event of
Default, the holder of this Note may, at its option, by notice in writing to
Maker declare this Note to be, and this Note shall forthwith become, due and
payable; provided, however, that upon the occurrence of an Event of Default
specified in clause (ii) above, the Outstanding Obligations shall automatically
become due and payable forthwith, without demand or notice of any kind. If an
Event of Default occurs, Maker shall pay to the holder of this Note all expenses
(including, without limitation, reasonable attorneys' fees and expenses and
court fees and court costs) incurred by the holder in connection with obtaining
advice as to its rights and remedies in connection with such default and in
connection with enforcing and collecting this Note.
Failure of or delay by the holder hereof to assert any right
contained herein will not be deemed to be a waiver thereof. The holder of this
Note may not waive any of its rights, except by an instrument in writing signed
by the holder.
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In the event that any one or more of the provisions of this
Note shall for any reason be held to be invalid, illegal or unenforceable, in
whole or in part or in any respect, or in the event that any one or more of the
provisions of this Note operate to invalidate this Note, then and in either of
those events, such provision or provisions only shall be deemed null and void
and shall not affect any other provision of this Note, and the remaining
provisions of this Note shall remain operative and in full force and effect and
shall in no way be affected, prejudiced or disturbed thereby.
Maker hereby forever waives presentment, presentment for
payment, demand, protest, notice of protest, notice of dishonor of this Note and
other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note.
This Note may not be amended except by an instrument in
writing signed by the holder of this Note.
This Note shall be governed by and construed in accordance
with the laws of the State of New York without regard to its doctrine of
conflict of laws. Maker, by his execution hereof (I) AGREES THAT ANY LEGAL SUIT,
ACTION OR PROCEEDING ARISING FROM OR RELATED TO THIS NOTE MAY BE INSTITUTED IN A
STATE OR FEDERAL COURT LOCATED IN NEW YORK OR NASSAU COUNTY IN THE STATE OF NEW
YORK; (II) WAIVES ANY OBJECTION WHICH HE MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING OR BASED ON FORUM NON
CONVENIENS; (III) CONSENTS TO AND SUBMITS TO THE EXERCISE OF JURISDICTION OVER
HIS PERSON BY ANY SUCH COURT HAVING JURISDICTION OVER THE SUBJECT MATTER; AND
(IV) WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON HIM AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO MAKER AT HIS
ADDRESS SET FORTH ABOVE OR TO ANY OTHER ADDRESS FOR AS MAY HEREAFTER BE
DESIGNATED IN ANY WRITTEN NOTICE BY MAKER TO PAYEE.
IN ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT
OF THIS NOTE, MAKER WAIVES THE RIGHT TO INTERPOSE ANY SET-OFF OR COUNTERCLAIM OF
ANY NATURE OR DESCRIPTION WHATSOEVER.
Any notice from the holder of this Note to Maker shall be
deemed given when delivered to Maker by hand or when deposited in the United
States mail and addressed to Maker at the address of Maker set forth in the
first Paragraph of this Note.
/s/ PAUL A. AMERSHADIAN
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Paul A. Amershadian
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