exv10w1



 






Exhibit 10.1




SECURED PROMISSORY NOTE




	 	 	 	 	 
	$425,000.00

	 	Richardson, Texas
	 	April 8th, 2005





FOR VALUE RECEIVED, the undersigned, Immediatek, Inc., a Nevada corporation
(“Borrower”), promises to pay to the order of Osias Blum (“Lender”), the sum of
four Hundred Twenty-Five Thousand and No/100 Dollars ($425,000.00), with interest from the date of
advancement on the unpaid balance hereof from time to time remaining unpaid at a rate of 10% per
annum, in lawful money of the United States of America, both principal and interest being payable
at the address designated in numbered paragraph 14 below or at such other place as Lender may, from
time to time, designate in writing. All interest under this Note shall be computed on the basis of
the actual number of days elapsed over an assumed year consisting of three hundred sixty-five (365)
days.



The principal of this Note shall mature and be due and payable on April 1st, 2006. All
accrued and unpaid interest shall be payable upon the maturity of the principal of this Note.



All past due principal and accrued interest on this Note shall bear interest from maturity until
paid at the highest (non-usurious) rate for which Borrower may legally contract under applicable
law. All payments on past due principal and accrued interest hereunder shall be payable in lawful
money of the United States of America which shall be legal tender for public and private debts at
the time of payment. As used herein, the term “Holder” shall initially mean Lender, and
shall subsequently mean each person or entity to which this Note is duly assigned.



This Note evidences indebtedness incurred by Borrower for interim financing provided to Borrower.




          Security. The repayment of the indebtedness evidenced hereby shall be secured by that
certain Collateral Assignment and General Security Agreement, of even date herewith, executed by
Lender (the “General Security Agreement”).




          Optional Prepayment; Mandatory Prepayment. This Note may be prepaid by Borrower in
whole or in part without the consent of the Lender and without prepayment penalty of any kind. In
the event that Borrower closes a Qualified Financing (as defined herein) within nine months from
the date of this Note, Borrower shall prepay twenty percent (20%) of the outstanding principal of
this Note, upon the closing of such Qualified Financing. For purposes of this Note, a “Qualified
Financing” shall mean the privately placed sale by the Borrower of Borrower’s securities to
investors occurring after the date hereof with aggregate gross proceeds to the Borrower in excess
of One Million Dollars ($1,000,000.00).




          Default; Remedies. For the purposes of this Agreement, an Event of Default (herein so
called) shall have occurred if (i) Borrower shall fail to pay when due any principal of or interest
on this Note, and such failure shall continue for a period of 30 days after Lender shall have given
Borrower written notice of such failure, (ii) Borrower shall have failed to perform any covenant or
other obligation contained (a) herein, or (b) in that certain Registration Rights Agreement dated
as of November 29, 2004, by and among Borrower, Gary Blum, Jeffrey Doman, and Lender, or (c) in
that certain Collateral Assignment and General Security Agreement dated as of the date hereof, by
and between Borrower, DiscLive, Inc., a Delaware corporation, and Lender (as secured party), and
such failure shall continue for a period of 30 days after Lender shall have given Borrower written
notice of such failure, (iii) Borrower shall commence a voluntary case or other proceeding seeking
liquidation or reorganization with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, and such case or other proceeding shall remain undismissed and
unstayed for a period of 30 consecutive days; or (iv) an involuntary case or other proceeding shall
be commenced against Borrower seeking liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other similar now or hereafter in effect or
seeking the appointment of a trustee, liquidator, receiver, custodian or other similar official of
it or any substantial part


 









 







of its property, and such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 consecutive days.




     If Borrower fails or refuses to pay any part of the principal of or interest upon this Note as
the same becomes due, or upon the occurrence of an Event of Default hereunder, then in any such
event the Holder hereof may, at its option (i) declare the entire unpaid balance of principal and
accrued interest on this Note to be immediately due and payable without notice, (ii) reduce any
claim to judgment, (iii) foreclose any liens or security interest securing all or any part hereof,
and/or (iv) demand, pursue and enforce any of Lender’s rights and remedies, pursuant to any
applicable law or agreement. Each right and remedy available to Lender shall be cumulative of and
in addition to each other such right and remedy. No delay on the part of Lender in the exercise of
any right or remedy available to Lender shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude other or further exercise thereof or exercise of any other such
right or remedy.



          Representations and Warranties of Borrower. Borrower represents and warrants that
Borrower has authority and has obtained all approvals and consents necessary to enter into this
Note and Borrower’s execution, delivery, and performance of this Note will not violate or conflict
with the terms of Borrower’s Certificate of Incorporation.





	 	1.  	Representations and Warranties of Lender.






     5.1 Suitability. The Lender is an “accredited investor” as such term is
defined in Regulation D issued by the Securities and Exchange Commission, and such Lender’s
financial condition is such that it is able to bear the economic risk of its investment in
the Note. Lender has such knowledge and experience in financial and business matters as is
necessary to make an investment in the Note.




     5.2 Purchase for Own Account. This Note is being acquired by Lender for
investment purposes only and not with a view to the distribution of all or any part thereof.
Lender has no present intention of selling, transferring, disposing or granting any
participation in the Note and is not a party to any contract, agreement or understanding that
would result in any such sale, transfer or disposition of all or any portion of this Note.



          No Waiver; Cumulative Rights. No delay on the part of the Holder of this Note in the
exercise of any power or right under this Note shall operate as a waiver thereof, nor shall a
single or partial exercise of any power or right preclude other or further exercise thereof or the
exercise of any other power or right.




          Waiver. Borrower waives demand, presentment, protest, notice of dishonor, notice of
nonpayment, notice of intention to accelerate, notice of acceleration, notice of protest and any
and all lack of diligence or delay in collection or the filing of suit hereon which may occur, and
agrees to all extensions and partial payments, before or after maturity, without prejudice to the
Holder hereof.




          Collection Costs. In the event that, upon an Event of Default, any amount under this
Note is collected in whole or in part through suit, arbitration or mediation, then and in any such
case there shall be added to the unpaid principal balance hereof all costs of collection,
(including, but not limited to, reasonable attorneys’ fees and expenses) whether or not suit is
filed.




          Governing Law. This Note shall be governed by and construed in accordance with the
laws of the State of Texas. In the event of a dispute involving this Note or any other instruments
executed in connection herewith, the parties irrevocably agree that exclusive venue for such
dispute shall lie in any court of competent jurisdiction in Dallas County, Texas, and the parties
waive any claim that such forum is inappropriate or inconvenient.




          Headings. The headings of the sections of this Note are inserted for convenience of
reference only and shall not be deemed to constitute a part hereof.




 









 








          Usury. All agreements between Borrower and the Holder of this Note, whether now
existing or hereafter arising and whether written or oral, are expressly limited so that in no
contingency or event whatsoever, whether by acceleration of the maturity of this Note or otherwise,
shall the amount paid, or agreed to be paid, to the Holder hereof for the use, forbearance or
detention of the money to be loaned hereunder or otherwise, exceed the maximum amount permissible
under applicable law. If from any circumstances whatsoever fulfillment of any provision of this
Note, at the time performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by law, then ipso facto, the obligation to be fulfilled shall be reduced to
the limit of such validity, and if from any such circumstances the Holder of this Note shall ever
receive anything of value as interest or deemed interest by applicable law under this Note or
otherwise in an amount that would exceed the highest lawful rate, such amount that would be
excessive interest shall be applied to the reduction of the principal amount owing under this Note,
and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of
principal of this Note, such excess shall be refunded to Borrower. In determining whether or not
the interest paid or payable with respect to any indebtedness of Borrower to the Holder hereof,
under any specific contingency, exceeds the highest lawful rate, Borrower and the Holder hereof
shall, to the maximum extent permitted by applicable law, (i) characterize any nonprincipal payment
as an expense, fee or premium rather than as interest, (ii) amortize, prorate, allocate and spread
the total amount of interest throughout the full term of such indebtedness so that the actual rate
of interest on account of such indebtedness is uniform throughout the term thereof, and/or (iii)
allocate interest between portions of such indebtedness, to the end that no such portion shall bear
interest at a rate greater than that permitted by law. The terms and provisions of this paragraph
shall control and supersede every other conflicting provision of all agreements between Borrower
and the Holder hereof.




          Successors and Assigns. All of the stipulations, promises and agreements in this Note
made by or on behalf of Borrower shall bind the successors and assigns of Borrower, whether so
expressed or not, and inure to the benefit of the successors and assigns of Borrower and Lender.
Any assignee of Borrower or Lender shall agree in writing prior to the effectiveness of such
assignment to be bound by the provisions hereof. The Lender from time to time also may sell to one
or more financial institutions, institutional investors or other persons a participation interest
in all or any undivided portion of the rights, powers, privileges, remedies and interests of the
Lender under this Note.




          Severability. In the event any one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision hereof, and this
Note shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.




          Notices. All notices and other communications hereunder shall be in writing or by
telecopy, and shall be deemed to have been duly made when delivered in person or sent by telecopy,
same day or overnight courier, or 72 hours after having been deposited in the United States
registered or certified mail return receipt requested, postage prepaid, to a party at the address
set forth below (which may be changed in accordance with these notice procedures):




If to Lender:



Name: Osias Blum

Address: 3104 Oak Lane

Dallas, Texas 75226



If to Borrower:



Immediatek, Inc.

2435 N. Central Expressway, Suite 1610

Richardson, Texas 75080

Attention: Zach Bair, Chief Executive Officer



 









 





     THIS NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN BORROWER AND LENDER CONCERNING THE
MATTERS HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.



THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.



IN WITNESS WHEREOF, the undersigned have executed this Note on and as of the date first set
forth above.



	 	 	 	 	 
	 	BORROWER:


IMMEDIATEK, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	Zach Bair 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	LENDER:


Osias Blum

 	 
	 	 	 
	 	Osias Blum, individually