f8k030609ex10ii_adex.htm


    Exhibit
10.2

     

     

     

    SENIOR
SECURED PROMISSORY NOTE

    


    


    
      
        	
                $255,000.00

              	
                Mountain
      View, California

              
	 
      	
                March
      6, 2009

              


      

    

    


    FOR VALUE
RECEIVED, the undersigned, AdEx
Media, Inc., a Delaware corporation, with a principal place of business
at 883 North Shoreline Blvd. #A200, Mountain View, California 94043 (the “Maker”), promises to
pay to Digital Equity Partners,
LLC, (the
“Holder”) a
Colorado limited liability company with a principal place of business at , or
such place as the Holder may designate, the principal sum of Two Hundred Fifty
Five Thousand Dollars ($255,000.00) without interest thereon.  This
promissory note (the “Note”) is being
delivered by Maker to Holder in partial consideration for Maker’s purchase of
the outstanding membership interests in Digital Instructor, LLC (the
“Company”)
pursuant to the terms of that certain Membership Interest Purchase Agreement
(the “Purchase
Agreement”), dated August 12, 2008, by and between Maker and the members
of the Company and as amended and pursuant to the terms of that Agreement dated
March 6, 2009 by and between Maker, Holder and the former members of the Company
(the “Agreement”).
Capitalized terms herein not otherwise defined shall have the meanings ascribed
to them in the Purchase Agreement.

    


    1. The Principal
Amount.  The principal balance of the Note, which is
outstanding and unpaid from time to time, is referred to as the “Principal
Amount.”

     

    2. Payment.  Subject
to Section 5.2
of the Purchase Agreement, the outstanding Principal Amount hereunder shall be
due and payable to Holder in the following amounts on the following
dates:

    


    2.1     $52,500
on the earlier of (i) ninety days from February 12, 2009 and (ii) when such
amount is declared due and payable by the Holder upon or after the occurrence of
an Acceleration Event (as defined below);

     

    2.2     $52,500
on the earlier of (i) one hundred eighty days from February 12, 2009 and (ii)
when such amount is declared due and payable by the Holder upon or after the
occurrence of an Acceleration Event (as defined below); and

     

    2.3     $150,000
on the earlier of (i) February 12, 2010, (ii) when such amount is declared due
and payable by the Holder upon or after the occurrence of an Acceleration Event
(as defined below) and (iii) when such amount is declared due and payable by
Holder upon or after the occurrence of Maker’s termination of Dennis Hefter’s
(“Hefter”)
employment other than for Cause prior to February 12, 2010.  For
purposes of this Note, “Cause” shall mean a
termination of Hefter’s employment by Maker attributed to (i) the repeated and
willful failure of Hefter substantially to perform his duties to Maker (other
than any such failure due to physical or mental illness) and such failure is not
materially corrected within 10 Business Days of receipt by Hefter of written
notice promptly given by Maker after such material breach; (ii) conviction of,
or entering a plea of guilty or nolo contendere to, a felony involving moral
turpitude or dishonesty; (iii) intentional misconduct, gross negligence or
material misrepresentation by Hefter in the performance of his duties to Maker
which causes material harm to Maker.

     

     

     

    
      
         

      

      
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    If any such date falls on a Saturday,
Sunday or a holiday, then such payment shall be made on the next succeeding
Business Day, as such term is defined in the Purchase Agreement.  All
amounts payable hereunder shall be paid by Maker in lawful money of the United
States and in same day or immediately available funds.

    


    3. Acceleration Events.
This Note shall be subject to prepayment in advance of the Maturity Date, at the
option of the Holder with written notice to the Maker, upon the occurrence of
any of the following events (each an “Acceleration Event”):
(i)  the filing by Maker of a petition in bankruptcy, either voluntary
or involuntary, a petition for reorganization arrangement or other relief under
the United States Bankruptcy Act, a voluntary petition for the appointment of a
receiver or comparable relief from creditors under the laws of any State, or the
making by Maker of an assignment of all or substantially all of its assets for
the benefit of creditors; or (ii)  the adjudication of Maker as a
bankrupt or insolvent, the appointment of a receiver of all or substantially all
of Maker's assets, or the entry of an order of the reorganization of Maker under
the United States Bankruptcy Act, if such adjudication, order, or appointment is
made upon a petition filed against Maker and is not, within sixty (60) days
after it is made, vacated or stayed on appeal or otherwise or if Maker by any
action or failure to act signifies its approval or consent to the order,
appointment or petition. If any of the foregoing Acceleration Events occur,
Holder may at any time at Holder’s option, upon written notice to Maker, declare
the entire Principal Amount to be due and payable immediately.

    


    4. Events of
Default.  The occurrence of any one or more of the events shall
constitute an “Event
of Default” under this Note; provided that Maker shall not have cured
such Event of Default within the specified period of time below:

     

    4.1     if Maker
fails to pay when due the Principal Amount or other amount payable hereunder,
and such failure continues uncured for a period of ten (10) Business Days (as
defined in the Purchase Agreement) after receipt of written notice by Holder of
such failure. In such case, the Principal Amount past due shall bear interest
(“Default
Interest”) at the rate of the then current Prime Rate plus four percent
(4%) per annum (“Default Interest
Rate”) until such amount is paid. As used herein, the “Prime Rate” shall
mean the prime rate as publicly announced from time to time by the Federal
Reserve Bank. Any change in the Default Interest Rate resulting from a change in
the Prime Rate shall be effective on the date of such change in the Prime
Rate;

     

    4.2     if Maker
voluntarily commences any bankruptcy or insolvency proceeding; or

     

    4.3     if any
bankruptcy or insolvency proceeding involving Maker is commenced; provided,
however, such Event of Default shall be deemed to have been cured if such
proceeding is stayed, dismissed, bonded or vacated within 60 days of Maker’s
receipt of notice thereof.

     

    If an Event of Default occurs, Holder
may at any time at Holder’s option, upon written notice to Maker, declare the
entire Principal Amount and other amounts payable hereunder to be due and
payable immediately, subject to the cure periods set forth in this Section
4.

     

     

    
      
         

      

      
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    5. Prepayment.  Maker
may prepay this Note, in whole or in part, at any time without penalty by paying
cash or immediately available funds.  Partial prepayments shall be
credited toward the reduction of the outstanding Principal Amount.

     

    6. Security.  The
Maker's obligations herein are secured by the grant to the Holder of a security
interest in the Collateral (as defined in the Security Agreement) in accordance
with the terms and conditions set forth in the Security Agreement, entered into
by and between the Maker and the Holder dated August 12, 2008, a copy of which
is attached hereto as Exhibit “1” (the
“Security
Agreement”) and as amended by the Agreement dated March 6,
2009.

     

    7. Miscellaneous.

     

    7.1     Governing
Law.  This Note shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to its
choice of law rules.

     

    7.2     Severability.  If
for any reason one or more of the provisions of this Note or their application
to any person or circumstances shall be held to be invalid, illegal or
unenforceable in any respect or to any extent, such provisions shall
nevertheless remain valid, legal and enforceable in all such other respects and
to such extent as may be permissible.  In addition, any such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Note, but this Note shall be construed as if such invalid, illegal or
unenforceable provision had never been contained therein.

     

    7.3     Successors and Assigns;
Transferability.  This Note inures to the benefit of Holder and
binds Maker and its respective successors and assigns.  The Holder may
not assign this Note without the written consent of Maker.  Any
transfer in violation of this provision shall be void ab initio. Unless and
until Maker receives a notice of an assignment, Maker shall recognize the Holder
as holder of the Note and shall not be liable for any payment made to Holder
instead of any assignee of the Note.  Following receipt of notice of
an assignment of the Note and upon consent thereto, Maker shall recognize the
assignee as Holder for all purposes under this Note.

     

    7.4     Captions.  The
captions or headings of the paragraphs in this Note are for convenience only and
shall not control or affect the meaning or construction of any of the terms or
provisions of this Note.

     

    7.5     Amendments. No
amendment, modification or waiver of any provision of this Note nor consent to
any departure by the Maker therefrom shall be effective unless the same shall be
in writing and signed by the parties hereto and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.

     

    7.6     Notice and Acknowledgment of
Representative.  All notices and other communications required
or permitted hereunder shall be in writing and shall be delivered to the
addresses listed above.

     

    7.7     Attorneys’
Fees.  If any party hereto commences or maintains any action at
law or in equity (including counterclaims or cross-complaints) against the other
party hereto by reason of the breach or claimed breach of any term or provision
of this Note, then the prevailing party in said action will be entitled to
recover its reasonable attorney’s fees and court costs incurred
therein.

     

    


    


    [Signature
on following page]

    


    


    
      
         

      

      
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    IN WITNESS WHEREOF, Maker has
executed this Note effective as of the date first written above.

    


    ADEX
MEDIA, INC.

    


    


    By:           _________________________

    


    Title:        _________________________ 

    


    


    


    


    


    


    


    


    


    


    
      
         

      

      
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    EXHIBIT
1

    


    SECURITY
AGREEMENT

    


    


    
 

     

     

     

     

     

     

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