ex10p1.htm


    
      

    

    Exhibit 10.1

    


      Southwest Bank

      An M&I
Bank

    

     

    PROMISSORY NOTE

    


    
      	
              Principal

              $634,197.92

            	
              Loan Date

              01-02-2009

            	
              Maturity

              04-01-2009

            	
              Loan No

              12030954-10000

            	
              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:
      $634,197.92

            	
               

            	
              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 Six Hundred Thirty-four Thousand One Hundred Ninety-seven & 92/100
Dollars ($634,197.92), together with interest on the unpaid principal balance
from January 2, 2009, until paid in full.

     

    PAYMENT.
Subject
to any payment changes resulting from changes in the Index, Borrower
will pay this loan in 2 principal
payments of $9,375.00
each and one final principal and interest payment of $617,832.78.
Borrower’s first principal payment
is
due
on February
1,
2009,
and all subsequent principal payments are due on the same day of each month
after that.
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. Borrower’s
final payment due April 1, 2009, will be for all principal and all accrued
interest not yet paid. 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 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 under the payment
schedule. Rather, early payments will reduce the principal balance
due
and may result in Borrower’s making fewer payments. 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. Any 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.

     

    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.

    
      
         

        
        

      

      
        
        

        
          

        

      

      
        
        

        PROMISSORY NOTE

        
          	
                  Loan No:
      12030954-10000-

                	
                  (Continued)

                	
                  Page
    2 

                


        

        


         

      

    

    
      
        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.

     

    ATTORNEY’S 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 it 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.

     

    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 October 19, 2005, in the original
principal amount of $1,125,000.00, 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 October 19, 2005 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

    
      
        
          
             

            
            

          

          
            
            

            
              

            

          

          
            
            

            PROMISSORY NOTE

            
              	
                      Loan No:
      12030954-10000-

                    	
                      (Continued)

                    	
                      Page
    3 

                    


            

            


             

          

        

      

    

    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.

     

     

    
      
        
           

          
          

        

        
          
          

          
            

          

        

        
          
          

          PROMISSORY NOTE

          
            	
                    Loan No:
      12030954-10000-

                  	
                    (Continued)

                  	
                    Page 4 

                  


          

          


           

        

      

    

    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