ex10p2.htm


     

    
      

    

    Exhibit 10.2


    
      
        Southwest
Bank

        An M&I
Bank

         

      

      PROMISSORY NOTE

      


      
        	
                Principal

                $1,325,000.00

              	
                Loan Date

                01-02-2009

              	
                Maturity

                04-01-2009

              	
                Loan No

                12030954-22003

              	
                Call / Coll

                 

              	
                Account

                00000094289

              	
                Officer

                47417

              	
                Initials

              
	
                References in
      the boxes above are for Lender’s use only and do not limit the
      applicability of this document to any particular loan or
item.

                Any item
      above containing “***” has been omitted due to text length
      limitations.

              


      

      


      
        	
                Borrower:

              	
                Siboney Learning Group,
      Inc.

                Siboney
      Corporation

                325 Kirkwood Rd #
      300

                Saint Louis, MO
      63122-4042

              	
                Lender:

              	
                Southwest Bank, an M&I
      Bank

                St Louis Region Commercial
      Lending

                13205 Manchester
      Road

                Des Peres, MO
      63131

              


      

    

    
      	 	 	 
	
              Principal Amount:
      $1,325,000.00

            	
            	
              Date of Note: January 2,
      2009    


            


    

    

      PROMISE TO PAY. Siboney
Learning Group Inc.; and Siboney Corporation (“Borrower”) jointly and severally
promise to pay to Southwest Bank, an M&I Bank (“Lender”), or order, in
lawful money of the United States of America, the principal amount of One
Million Three Hundred Twenty-five Thousand & 00/100 Dollars
($1,325,000.00) or so much as may be outstanding, together with interest on the
unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each
advance.

       

      PAYMENT. Borrower
will pay this loan in one payment of all outstanding principal plus all accrued
unpaid interest on April 1,
2009.
In addition, Borrower will pay regular monthly payments of all accrued unpaid
interest due as of each payment date, beginning February
1,
2009,
with all subsequent interest payments to be due on the same day of each month
after that. Unless otherwise agreed or required by applicable law, payments will
be applied to Accrued Interest, Principal, Late Charges, and Escrow. Borrower
will pay Lender at Lender’s address shown above or at such other place as Lender
may designate in writing.

       

      
        VARIABLE INTEREST
RATE.  The interest rate on this Note is subject to change from
time to time based on changes in an independent index which is the one month
British Bankers Association (BBA) LIBOR and reported by a major news service
selected by Lender (such as Reuters, Bloomberg or Moneyline
Telerate).  If BBA LIBOR for the one month period is not provided or
reported on the first day of a month because, for example, it is a weekend or
holiday or for another reason, the One Month LIBOR Rate shall be established as
of the preceding day on which a BBA LIBOR rate is provided for the one month
period and reported by the selected news service (the “Index”).  The
Index is not necessarily the lowest rate charged by Lender on its
loans.  If the Index becomes unavailable during the term of this loan,
Lender may designate a substitute index after notifying
Borrower.  Lender will tell Borrower the current Index rate upon
Borrower’s request.  The interest rate change will not occur more
often than each first day of each calendar month and will become effective
without notice to the Borrower.  Borrower understands that Lender may
make loans based on other rates as well.  The Index currently is 0.436% per
annum.  The interest rate to be applied to the unpaid principal
balance of this Note will be calculated as described in the “INTEREST
CALCULATION METHOD” paragraph using a rate of 3.500 percentage points over the
Index, adjusted if necessary for any minimum and maximum rate limitations
described below, resulting in an initial rate of 4.500% per annum based on a
year of 360 days.   NOTICE:  Under no circumstances
will the interest rate on this Note be less than 4.500% per annum or more than
the maximum rate allowed by applicable law.

         

        INTEREST
CALCULATION METHOD.  Interest on this Note is computed on a 365/360
basis; that is, by applying the ratio of the interest rate over a year of 360
days, multiplied by the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding.  All Interest
payable under this Note is computed using this method.

         

        PREPAYMENT.  Borrower
agrees that all loan fees and other prepaid finance charges are earned fully as
of the date of the loan and will not be subject to refund upon early payment
(whether voluntary or as a result of default), except as otherwise required by
law.   Except for the foregoing, Borrower may pay
without penalty all or a portion of the amount owed earlier than it is due.
Early payments will not, unless agreed to by Lender in writing, relieve Borrower
of Borrower’s obligation to continue to make payments of accrued unpaid
interest. Rather, early payments will reduce the principal balance due. Borrower
agrees not to send Lender payments marked “paid in full”, “without recourse”, or
similar language. If Borrower sends such a payment, Lender may accept it without
losing any of Lender’s rights under this Note, and Borrower will remain
obligated to pay any further amount owed to Lender. All written communications
concerning disputed amounts, including any check or other payment instrument
that indicates that the payment constitutes “payment in full” of the amount owed
or that is tendered with other conditions or limitations or as full satisfaction
of a disputed amount must be mailed or delivered to: Southwest Bank,
an M&I Bank; St Louis Region Commercial Lending; 13205 Manchester
Road; Des Peres, MO 63131.

      

       

      LATE CHARGE. If a payment is
more than 10 days late, Borrower will be charged 5.000% of the unpaid portion of the regularly
scheduled payment.

       

      INTEREST AFTER
DEFAULT. Upon default,
including failure to pay upon final maturity, the interest rate on this
Note  shall be increased by adding a 3.000 percentage point margin (“Default Rate
Margin”). The
Default Rate Margin shall also apply to each succeeding interest rate change
that would have applied had there been no default. However, in no event will the
interest rate exceed the maximum interest rate limitations under applicable
law.

       

      DEFAULT. Each of the
following shall constitute an event of default (“Event of Default”) under this
Note.

       

      Payment Default. Borrower fails to
make any payment when due under this Note.

       

      Other Defaults. Borrower fails to
comply with or to perform any other term, obligation, covenant or condition
contained in this Note or in any of the related documents or to comply with or
to perform any term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower.

      
        
          
            
               

              
              

            

            
              
              

              
                

              

            

            
              
              

              PROMISSORY NOTE

              
                	
                        Loan No:
      12030954-22003-

                      	
                        (Continued)

                      	
                        Page 2 

                      


              

              


               

            

          

        

      

      
        Default in Favor of Third
Parties. Borrower or any Grantor defaults under any loan,
extension of credit, security agreement, purchase or sales agreement, or any
other agreement, in favor of any other creditor or person that may materially
affect any of Borrower’s property or Borrower’s ability to repay this Note or
perform Borrower’s obligations under this Note or any of the related
documents.

         

      

      False Statements. Any warranty,
representation or statement made or furnished to Lender by Borrower or on
Borrower’s behalf under this Note or the related documents is false or
misleading in any material respect, either now or at the time made or furnished
or becomes false or misleading at any time thereafter.

       

      Insolvency. The dissolution or
termination of Borrower’s existence as a going business, the insolvency of
Borrower, the appointment of a receiver for any part of Borrower’s property, any
assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or
against Borrower.

       

    

    
      Creditor or Forfeiture
Proceedings. Commencement of
foreclosure or forfeiture proceedings, whether by judicial proceeding,
self-help, repossession or any other method, by any creditor of Borrower or by
any governmental agency against any collateral securing the loan. This includes
a garnishment of any of Borrower’s accounts, including deposit accounts, with
Lender. However, this Event of Default shall not apply if there is a good faith
dispute by Borrower as to the validity or reasonableness of the claim which is
the basis of the creditor or forfeiture proceeding and if Borrower gives Lender
written notice of the creditor or forfeiture proceeding and deposits with Lender
monies or a surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve or
bond for the dispute.

       

      Events Affecting
Guarantor. Any of the
preceding events occurs with respect to any guarantor, endorser, surety, or
accommodation party of any of the indebtedness or any guarantor, endorser,
surety, or accommodation party dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty of the indebtedness
evidenced by this Note.

       

      Change In
Ownership. Any change in
ownership of twenty-five percent (25%) or more of the common stock of
Borrower.

       

      Adverse Change. A material adverse
change occurs in Borrower’s financial condition, or Lender believes the prospect
of payment or performance of this Note is impaired.

       

      Insecurity. Lender in good
faith believes itself insecure.

       

      LENDER’S RIGHTS. Upon default,
Lender may declare the entire unpaid principal balance under this Note and
all accrued unpaid interest immediately due, and then Borrower will pay that
amount.

       

      ATTORNEYS’ FEES;
EXPENSES. Lender may hire or
pay someone else to help collect this Note if Borrower does not pay. Borrower
will pay Lender that amount. This includes, subject to any limits under
applicable law, Lender’s attorneys’ fees and Lender’s legal expenses whether or
not there is a lawsuit, including attorneys’ fees and expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), and appeals. If not prohibited by applicable law, Borrower also
will pay any court costs, in addition to all other sums provided by
law.

       

      GOVERNING LAW. This Note will be governed by federal
law applicable to Lender and, to the extent not preempted by federal law, the
laws of the State of Missouri without regard to its conflicts of law provisions.
This Note has been accepted by Lender in the State of
Missouri.

       

      CHOICE OF VENUE. If there is a
lawsuit, Borrower agrees upon Lender’s request to submit to the jurisdiction of
the courts of St Louis County, State of Missouri.

       

      DISHONORED ITEM
FEE. Borrower will pay
a fee to Lender of $15.00 if Borrower makes a payment on Borrower’s loan and the
check or preauthorized charge with which Borrower pays is later
dishonored.

       

      RIGHT OF SETOFF. To the extent
permitted by applicable law, Lender reserves a right of setoff in all Borrower’s
accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Borrower holds jointly with someone else and all accounts
Borrower may open in the future. However, this does not include any IRA or Keogh
accounts, or any trust accounts for which setoff would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on the debt against any and all such accounts, and, at
Lender’s option, to administratively freeze all such accounts to allow Lender to
protect Lender’s charge and setoff rights provided in this
paragraph.

       

      LINE OF CREDIT. This Note
evidences a revolving line of credit. Advances under this Note, as well as
directions for payment from Borrower’s accounts, may be requested orally or in
writing by Borrower or by an authorized person. Lender may, but need not,
require that all oral requests be confirmed in writing. Borrower agrees to be
liable for all sums either: (A) advanced in accordance with the instructions of
an authorized person or (B) credited to any of Borrower’s accounts with Lender.
The unpaid principal balance owing on this Note at any time may be evidenced by
endorsements on this Note or by Lender’s internal records, including daily
computer print-outs. Lender will have no obligation to advance funds under this
Note if: (A) Borrower or any guarantor is in default under the terms of this
Note or any agreement that Borrower or any guarantor has with Lender, including
any agreement made in connection with the signing of this Note;
(B) Borrower or any guarantor ceases doing business or is insolvent; (C)
any guarantor seeks, claims or otherwise attempts to limit, modify or revoke
such guarantor’s 

      
        
          
            
              
                 

              

              
                
                  

                

              

              
                
                

                PROMISSORY NOTE

                
                  	
                          Loan No:
      12030954-22003-

                        	
                          (Continued)

                        	
                          Page 3 

                        


                

                


                 

              

            

          

        

      

      guarantee of this Note or any other loan with Lender; (D) Borrower has
applied funds provided pursuant to this Note for purposes other than those
authorized by Lender; or (E) Lender in good faith believes itself
insecure.

       

      HEDGING
INSTRUMENTS. Obligations include, without limitation all obligations,
indebtedness and liabilities arising pursuant to or in connection with any
interest rate swap transaction, basis swap, forward rate transaction, interest
rate option, price risk hedging transaction or any similar transaction between
the Borrower and Lender.

      

        PRIOR NOTE.  This
promissory Note provides for the renewal or refinance of the existing debt
evidenced by the Promissory Note, dated July 23, 2002, in the original principal
amount of $1500000.00, as may have been modified, extended or
amended.  This Note is not intended to satisfy or extinguish the
underlying debt and obligation evidenced by the July 23, 2002 Promissory Note,
but rather set forth the terms and conditions on which such debt is being
renewed or refinanced.

         

      

      SUCCESSOR
INTERESTS. The terms of this
Note shall be binding upon Borrower, and upon Borrower’s heirs, personal
representatives, successors and assigns, and shall inure to the benefit of
Lender and its successors and assigns.

       

      
        GENERAL
PROVISIONS. If any part of
this Note cannot be enforced, this fact will not affect the rest of the Note.
Lender may delay or forgo enforcing any of its rights or remedies under this
Note without losing them. Each Borrower understands and agrees that, with or
without notice to Borrower, Lender may with respect to any other Borrower (a)
make one or more additional secured or unsecured loans or otherwise extend
additional credit; (b) alter, compromise, renew, extend, accelerate, or
otherwise change one or more times the time for payment or other terms of any
indebtedness, including increases and decreases of the rate of interest on the
indebtedness; (c) exchange, enforce, waive, subordinate, fail or decide not to
perfect, and release any security, with or without the substitution of new
collateral; (d) apply such security and direct the order or manner of
sale thereof, including without limitation, any non-judicial sale permitted by
the terms of the controlling security agreements, as Lender in its discretion
may determine; (e) release, substitute, agree not to sue, or deal with any one
or more of Borrower’s sureties, endorsers, or other guarantors on any terms or
in any manner Lender may choose; and (f) determine how, when and what
application of payments and credits shall be made on any other indebtedness
owing by such other Borrower. Borrower and any other person who signs,
guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the terms
of this Note, and unless otherwise expressly stated in writing, no party who
signs this Note, whether as maker, guarantor, accommodation maker or endorser,
shall be released from liability. All such parties agree that Lender may renew
or extend (repeatedly and for any length of time) this loan or release any party
or guarantor or collateral; or impair, fail to realize upon or perfect Lender’s
security interest in the collateral; and take any other action deemed necessary
by Lender without the consent of or notice to anyone. All such parties also
agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Note are joint and several.

      

    

    
       

      ORAL AGREEMENTS OR COMMITMENTS TO
LOAN MONEY, EXTEND CREDIT OR TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE, REGARDLESS
OF THE LEGAL THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO THE
CREDIT AGREEMENT. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.

      


      JURY WAIVER. Lender
and Borrower hereby waive the right to any jury trial in any action, proceeding,
or counterclaim brought by either Lender or Borrower against the
other.

      


      PRIOR TO SIGNING THIS NOTE, EACH
BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE
VARIABLE INTEREST RATE PROVISIONS. EACH BORROWER AGREES TO THE TERMS OF THE
NOTE.

      


      BORROWER ACKNOWLEDGES RECEIPT OF A
COMPLETED COPY OF THIS PROMISSORY NOTE.

      


      BORROWER:

    

    


    SIBONEY LEARNING
GROUP, INC.

    


    
      	
              By: /s/ William
      D. Edwards,
      Jr.                                                 
      

              William D.
      Edwards, President of

              Siboney
      Learning Group, Inc.

            	
              By:/s/ Timothy J.
      Tegeler                 
                                               
      

              Timothy J.
      Tegeler, Chief Executive Officer of 

              Siboney
      Learning Group, Inc.

            
	
               

            	
               

            
	
              
                By: /s/ Rebecca
      Braddock                                                        

                Rebecca
      Braddock, Secretary of

                Siboney
      Learning Group, Inc.

              

            	
               

            
	
               

            	
               

            
	
               

            	
               

            
	
              SIBONEY
      CORPORATION

            	
               

            
	
               

            	
               

            
	
              By: /s/ William
      D. Edwards,
      Jr.                                                 
      

              William D.
      Edwards, Executive Vice President of

              Siboney
      Corporation

            	
              

                By:/s/ Timothy J.
      Tegeler                 
                                               
      

                Timothy J.
      Tegeler, Chief Executive Officer of 

                Siboney
      Corporation

              

            
	
               

            	
               

            
	
              
                
                  By: /s/ Rebecca
      Braddock                                                        

                  Rebecca
      Braddock, Secretary of

                  Siboney
      Corporation