Exhibit 10.1
THIRD AMENDED AND
RESTATED SECURED PROMISSORY NOTE
(For Revolving Line of Credit,
Advances and Guaranteed Obligations)
|
$3,000,000
|
April 29, 2009
|
Los Angeles,
California
|
For Value Received,
the undersigned MyMedicalRecords, Inc. (formerly
mymedicalrecords.com, Inc.), a Delaware corporation ("Borrower")
and a wholly-owned subsidiary of MMR Information Systems, Inc.
(formerly Favrille, Inc.), a Delaware corporation ("Parent"),
promises to pay to the order of The RHL Group, Inc., a California
corporation ("Lender"), the sum of up to Three Million Dollars
($3,000,000) (sometimes referred to as a "Reserve Line of Credit"
herein), on a revolving basis, with interest from the date of
disbursement on the Unpaid Balance, as that term is used herein,
and defined below, from time to time outstanding. Capitalized terms
used herein without definition shall, unless otherwise indicated,
have the meanings given to such terms in the Security Agreement
dated July 31, 2007, which grants certain security interests in the
Collateral owned by Borrower, as therein defined. Borrower and
Lender agree that the terms of this Third Amended and Restated
Secured Promissory Note ("Third Amended Note") apply to the
increased Reserve Line of Credit.
This Third Amended
Note is intended to update and amend that certain Secured
Promissory Note (the "Original Note") dated July 30, 2007, as
amended by the Amended and Restated Secured Promissory Note (the
"First Amended Note"), dated August 23, 2007, and as further
amended by the Second Amended and Restate Secured Promissory Note
(the "Second Amended Note") dated August 1, 2008, which was
modified by the Allonge dated January 27, 2009 (the "Allonge"),
which notes were approved by the Borrower's Board of Directors by
resolutions dated July 23, 2007, August 30, 2007 and June 2, 2008,
respectively. As stated therein, the Original Note, the First
Amended Note and the Second Amended Note provided for increases, if
necessary, in the amount of the Reserve Line of Credit, and the
terms of the Security Agreement entered into on July 31, 2007
provide for that agreement to apply to advances in excess of the
therein stated "Amount". The terms of the Security Agreement shall
be deemed to apply to, and a security interest is hereby granted to
the Lender, for all advances made, under this Third Amended Note to
the same extent, validity, security and priority as to advances
under the Original Note, the First Amended Note and the Second
Amended Note.
The original of the
First Amended Note and Second Amended Note, including the Allonge,
shall be marked as "superseded" and stapled to the rear of this
Third Amended Note. If and only if the Third Amended Note is deemed
unenforceable, or if the Security Agreement is, for any reason,
deemed not to apply to the Third Amended Note, then the terms of
the Second Amended Note, including the Allonge (or the First
Amended Note or the Original Note, as the case may be and if
necessary), shall be deemed reinstated to the extent necessary to:
(a) repay the advances of the Lender, and (b) provide for security
to the Lender.
|
PROMISSORY NOTE
|
|
Page 1 of 6
|
The term "Unpaid
Balance" shall mean all of the following: (a) the funds actually
lent to the Borrower, including interest, fees, and costs thereon
(which includes reasonable legal expenses of Lender in connection
with this Third Amended Note); (b) any funds paid or advanced for
the benefit of the Borrower at the request of Borrower to third
parties, including charges made on the Lender's credit or charge
cards, or credit or charge cards for which Lender is liable
(exclusive of interest on such charges) ("Credit Card Advances") on
or after July 23, 2007, (c) subject to the last sentence of this
paragraph, any amounts guaranteed by the Lender at the request of
Borrower, for which the guarantees are still outstanding (including
any balance still due under the January 9 th , 2009
guarantee of Robert H. Lorsch to Singer Lewak LLP), (d) unpaid
consulting fees, salary or expenses accrued or owed to Lender.
However, any amounts guaranteed by the Lender and unpaid consulting
fees shall not be included in the $3,000,000 Reserve Line of Credit
limit.
The entire Unpaid
Balance shall be due and payable at the end of each calendar month,
provided however, that if the Borrower is not otherwise in default
under the Original Note, the First Amended Note, the Second Amended
Note or this Third Amended Note or the Security Agreement entered
into on or about July 31, 2007, the Reserve Line of Credit shall
continue in existence for the next succeeding month, and payment of
the full Unpaid Balance shall be similarly deferred. However,
notwithstanding any other provision in this Note: (1) the
obligation to pay interest on a monthly basis, and the obligation
to pay the Credit Card Advances, shall continue to be due and
payable on a monthly basis, and (b) unless otherwise agreed in
writing by Lender, the entire unpaid balance shall be due and
owing, without extension, November 30, 2009 (the "Final Maturity
Date").
The monthly payment
shall not include any interest for amounts guaranteed by the Lender
unless the Lender has performed on the guarantee, whether by
payment or otherwise, except that on the Final Maturity Date the
Borrower must pay all amounts due, including payment in full of the
amount of any still then outstanding guarantees (which latter
amount shall be placed in a trust account pending payment by the
Borrower of the guaranteed obligation (and subsequent release of
the funds back to the Borrower) or payment to the guaranteed party
in accordance with any agreement between the Lender and the
guaranteed party).
Upon the occurrence of
an Event of Default, as defined in this Note or the Security
Agreement, the Final Maturity Date shall be accelerated without
further action by the Lender.
Interest shall accrue
at the rate equal to the lesser of 10% per annum or the maximum
rate allowed under the California
Constitution. Said rate shall continue in effect for the entire
period of the Reserve Line of Credit up to the Final Maturity Date.
At no time shall the interest rate, and fees, if applicable, exceed
the maximum rate chargeable by law.
Borrower acknowledges
and agrees that the Unpaid Balance is presently due and owing, that
the Unpaid Balance is approximately $1,500,000, and that there are
no defenses, at law or in equity, to the amount due under this Note
as of the date of the execution of this Note.
Borrower and Parent
understand that Lender is charging, in addition to interest, as
described above a "Loan Origination Fee." The Loan Origination Fee
is payable to Lender on the date of this Third Amended Note and, in
the event of any renewal for an additional six-month
|
PROMISSORY NOTE
|
|
Page 2 of 6
|
term, on any such
renewal date. The Loan Origination Fee shall be $200,000 payable by
a separate promissory note (which shall be convertible at the sole
option of the Borrower into warrants to acquire 2,800,000 shares of
Parent's common stock at an exercise price of $0.15 per share,
which shall be fully