Attached files
Exhibit
10.18
SECURED PROMISSORY NOTE
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$250,000.00
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August
14, 2018
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FOR
VALUE RECEIVED, the undersigned, BLOCKCHAIN INDUSTRIES, an
individual residing at 730 Arizona Ave., Suite 220, Santa Monica,
California 90401 (the “Borrower”), hereby promises to pay
to the order of IC, LLC, a limited liability company at
659
Stonequarry Rd., Dayton, OH, 45414 (the “Lender”) the principal amount of
TWO HUNDRED FIFTY THOUSAND UNITED STATES DOLLARS ($250,000.00) (the
“Loan”), or, if
less, the aggregate unpaid principal amount of the Loan owing to
Lender with interest on the unpaid principal balance from the date
of this Secured Promissory Note (this “Promissory Note”) until paid, at
the Interest Rate (as hereinafter defined) provided
herein.
1. Advances. The Lender shall advance the
full principal amount of the Loan to the Borrower upon the due
execution and delivery to the Lender of an original copy of this
Promissory Note.
2. Rate of Interest. The Promissory Note
shall bear a flat rate of interest at $25,000.
3. Date and Time of Payment. The
outstanding principal balance of this Promissory Note, together
with all accrued and unpaid interest, shall be paid in full on the
earlier to occur of (a) the Maturity Date (as hereinafter defined)
or (b) the date of termination of this Promissory Note, whether by
its terms, by prepayment, or by acceleration. All payments of
principal of and interest on the Loan by Borrower hereunder shall
be made not later than 12:00 Noon (New York City time) on the date
when due by wire transfer of immediately available funds to
Lender’s account at a bank in the United States specified by
Lender in writing to Borrower.
4. Manner of Payment. The repayment of the
Loan and all payments by Borrower in respect of any obligations
hereunder (the “Obligations”) shall be made
without deduction, defense, set off or counterclaim, free and clear
of all taxes delivered to Lender.
5. Maturity. To the extent not sooner due
and payable in accordance with this Promissory Note, the
Obligations shall be due and payable THIRTY (30) days following the
date hereof (or such immediately preceding business day if such
date occurs on a non-business day) (the “Maturity Date”).
6. Application of Payments. All payments
shall be applied to amounts then due and payable in the following
order: (a) to Lender’s costs and expenses reimbursable in
connection herewith; (b) to interest accrued on the outstanding
principal balance of this Promissory Note; (c) to the principal
amount hereof; and (d) to all other Obligations, or in such other
manner as Lender shall determine in its sole and exclusive
discretion. As provided in Section 13 herein, notwithstanding
anything contained herein to the contrary, the Lender’s sole
recourse hereunder shall be to the Pledged Assets.
7. Security. This Promissory Note shall be
secured by a first priority security interest in and pledge upon
all of Borrower’s right, title, and interest in all of its
assets (the “Pledged
Assets”). As security for the full and prompt payment,
when due, whether by acceleration or otherwise, of all amounts
owing by the Borrower to the Lender hereunder and the punctual and
full performance and compliance by the Borrower of each and every
duty, covenant, agreement and obligation hereunder, the Borrower
hereby pledges, assigns, transfers and delivers to the Lender the
Pledged Assets and hereby grants to the Lender a first priority
lien on and a first priority security interest in the Pledged
Assets.
8. Representations and Warranties. Borrower
makes the following representations and warranties to Lender, which
representations and warranties shall be true, correct, and complete
as of the date hereof and shall survive the execution and delivery
of this Promissory Note:
(a) Due Execution; No Conflict. This
Promissory Note has been duly executed and delivered by Borrower.
The execution, delivery, and performance by Borrower of this
Promissory Note and the consummation of the transactions
contemplated hereby, do not and will not (i) violate any provision
of federal, state or local law or regulation applicable to
Borrower, or any order, judgment or decree of any court or other
governmental authority, (ii) conflict with, result in a breach or
termination of, or constitute (with due notice or lapse of time or
both) a default under any contractual obligation of Borrower, (iii)
result in or require the creation or imposition of any lien of any
nature whatsoever upon any properties or assets of Borrower, other
than liens or security interests in favor of Lender or (iv) require
any approval or consent of any other person or entity, other than
consents or approvals that have been obtained and that are still in
force and effect. The execution, delivery, and performance by
Borrower of this Promissory Note do not and will not require any
registration with, consent or approval of, or notice to, or other
action with or by, any governmental authority, other than consents
or approvals that have been obtained and that are still in force
and effect. This Promissory Note when executed and delivered by
Borrower will be the legally valid and binding obligation of
Borrower, enforceable against Borrower in accordance with its term,
except as enforcement may be limited by equitable principles or by
bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors’ rights
generally.
(b) No Litigation. No litigation,
investigation or proceeding of or before any arbitrator or
government authority is (i) pending or, to the knowledge of
Borrower, threatened with respect to this Promissory Note or the
Pledged Assets or any of the transactions contemplated hereby or
(ii) pending or, to the knowledge of Borrower, threatened by or
against Borrower, its properties or revenues which, if adversely
determined, would have a material adverse effect on its business,
operations, property or financial condition, when taken as a
whole.
9. Covenant of Borrower. As of the date
hereof and so long as the Obligations shall be outstanding,
Borrower will not create or incur any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind on the Pledged
Assets.
10. Events of Default; Remedies;
Acceleration. The occurrence of any one or more of the
following events shall constitute an “Event of Default”
hereunder:
(a) Borrower fails to
make any payment of outstanding principal balance of this
Promissory Note, or interest thereon, or any of the other
Obligation when due and payable;
(b) Any representation
or warranty of Borrower made in this Promissory Note and the
transactions contemplated hereby proves to have been false or
incorrect in any material respect or Borrower shall fail to comply
in all respects with any covenant herein or therein;
(c) Borrower shall
violate any provision of this Promissory Note; or
(d) If this Promissory
Note or any financing statement, document or other instrument
executed, delivered or filed in connection herewith or with the
security interest granted to Lender hereunder shall, for any
reason, fail or cease to create a valid and perfected lien on or a
first priority security interest in any or all of the Pledged
Assets or the Pledged Assets shall be compromised or
encumbered.
Upon
the occurrence of any Event of Default described herein,
Lender’s sole recourse shall be to foreclosure upon the
Pledged Assets. Upon an Event of Default, Lender shall have the
right to sell the Pledged Assets without demand or notice of sale.
Any sale may be made at Lender’s discretion on any exchange
or other market where such business is usually transacted or at
public auction or private sale and Lender may be the purchaser for
its own account. It being understood that a prior demand or prior
notice of the time and place of such sale shall not be considered a
waiver of Lender’s right to sell or buy without demand or
notice.
Notwithstanding
anything contained herein to the contrary, upon an Event of
Default, the Lender shall be authorized to date an instrument of
transfer and take such other actions necessary or advisable to
effectuate the transfer of the Pledged Assets from the ownership of
the Borrower to the ownership of the Lender, including, but not
limited to, delivering the Pledged Assets and the instrument of
transfer to any officer or director of IC, LLC. necessary or
advisable to effect the transfer of ownership thereof.
11. Non-Recourse. The Lender’s sole
recourse for payment hereunder is to the Pledged Assets. The
Borrower shall not be liable for any deficiency in the event that
the liquidation of the Pledged Assets does not serve to fully repay
the principal, interest or other Obligations remaining hereunder
following the liquidation of the Pledged Assets, in whole or in
part, by the Lender. The Lender shall not owe any amount whatsoever
to the Borrower in the event that the liquidation of the Pledged
Assets results in an amount greater than the amount of principal,
interest or other Obligations owed hereunder by the Lender.
Notwithstanding anything contained herein to the contrary, the
Lender shall have full recourse against the Borrower and his assets
(including the ability to enforce any remedies at law or in equity)
until such time as the Pledged Assets are freely tradable and
deposited into the account of the Lender.
12. Certain Rights and Waivers. To the extent not
prohibited by the provisions of applicable law, Borrower hereby
expressly waives: (a) all presentments, demands for performance,
notices of nonperformance (except to the extent required by this
Promissory Note), protests, notices of protest and notices of
dishonor; (b) any requirement of diligence or promptness on the
part of Lender in the enforcement of its rights under this
Promissory Note; (c) any and all notices of every kind and
description which may be required to be given by any statute or
rule of law; and (d) any defense (other than indefeasible payment
in full) which it may now or hereafter have with respect to its
liability under this Promissory Note.
13. Prepayment. Borrower may prepay this
Promissory Note in whole or from time to time in part, together
with all accrued interest on this Promissory Note (or portion being
prepaid) without penalty or premium of any kind.
14. Assignments. Borrower may assign or
transfer any of its rights or obligations hereunder without consent
of Lender.
15. Attorney
Review. Each party hereto acknowledges and agrees that it
has had sufficient time to review and revise this Promissory Note,
with the assistance of counsel, and that this Promissory Note is
the work product of both parties.
16. CHOICE OF LAW. THE VALIDITY OF
THIS PROMISSORY NOTE, THE CONSTRUCTION, INTERPRETATION AND
ENFORCEMENT HEREOF, AND THE RIGHTS OF THE BORROWER AND LENDER WITH
RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO, SHALL
BE DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICTS
OF LAW PRINCIPLES EXCEPT TO THE EXTENT NECESSARY TO ENFORCE THIS
CHOICE OF LAW PROVISION. Borrower submits to and agrees to
the exclusive jurisdiction of the state and federal courts sitting
in the city of New York, New York, in any action or proceeding
arising out of or relating to this Promissory Note and agrees that
all claims in respect of the action or proceeding may be, and shall
be, heard and determined in any such court. Borrower waives any
defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety or other security
that might be required of any other party with respect thereto.
Lender may make service of process by sending or delivering a copy
of the process to Borrower at the address and in the manner
provided for the giving of notices above. Nothing in this Section,
however, shall affect the right of any of Lender to serve legal
process in any other manner permitted by law or in equity. Borrower
and the Lender shall be bound by a final judgment in any action or
proceeding so brought, which shall be conclusive and may be
enforced by suit on the judgment or in any other manner provided by
law or in equity. In the event of any action or suit based upon or
arising out of any alleged breach of any provision of this
Promissory Note, the prevailing party will be entitled to recover
from the other party reasonable attorneys' fees and other costs of
such action or suit.
17. Severability. If, for any reason, a
court of competent jurisdiction finds any provision of this
Promissory Note, or any portion hereof, to be unenforceable, such
decision shall not affect the validity of the remaining portion,
which remaining portion shall continue in full force and effect as
if this Promissory Note had been executed with the invalid portion
thereof eliminated therefrom or modified to the extent permitted by
law.
18. Notices. All communications hereunder
shall be in writing and shall be deemed to be duly given and
received (a) upon delivery if delivered personally or upon emailing
if by email or upon confirmed transmittal if by facsimile, (b) on
the next business day if sent by overnight courier, or (c) four (4)
business days after mailing if mailed by prepaid registered mail,
return receipt requested, in each case to the appropriate notice
address or facsimile number.
19. Transfers. Borrower may not transfer or assign
this Promissory Note nor any right or obligation hereunder to any
person or entity without the prior written consent of Lender. This
Promissory Note is freely transferable by Lender.
20. Independent Arms Length Transaction. It
is understood and agreed that this Promissory Note and the
transactions contemplated hereby were negotiated in an arms length
transaction separate and distinct from any other transaction or
contractual obligations and are independent of any transaction or
transactions between Borrower, on the one hand, and Lender and any
of its affiliates or related entitles on the other hand. Borrower
further agrees that the contractual obligations of Borrower
hereunder are in no way dependent or conditioned upon any other
agreements, contracts or transactions whatsoever unless expressly
stated herein.
[ signature page follows ]
IN
WITNESS WHEREOF, the undersigned has executed this Promissory Note
as of the date first written above.
BLOCKCHAIN
INDUSTRIES, INC.
_____________________________
By:
Patrick Moynihan
Title:
CEO
[ signature page to Promissory Note ]