Exhibit 99.2
SECURITIES AND EXCHANGE COMMISSION
SCHEDULE 13D
MMRGLOBAL, INC.
________________________________________________________
(Name of Issuer)
Common Stock, par value $0.001 per share
55314U207
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(CUSIP Number)
Robert H. Lorsch
Chief Executive Officer
The RHL Group, Inc.
P.O. Box 17034
Beverly Hills, CA 90210
(310) 476-7002
June 6, 2015
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject
of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See
§240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover
page. The information required on the remainder of this cover page shall not be deemed to be "filed" for
the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the Notes). 1
CUSIP No. 55314U207 1. NAMES OF REPORTING PERSON The RHL Group, Inc. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ¨ 3. SEC USE ONLY 4. SOURCE OF FUNDS* OO 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
¨
6. CITIZENSHIP OR PLACE OF ORGANIZATION State of California, United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 79,371,696 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 79,371,696
(b) ý
Citizen of USA
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11. |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
79,371,696 (1) |
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12. |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
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13. |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.5% (2) |
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14. |
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TYPE OF REPORTING PERSON
CO |
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2
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(1) |
Consists of (i) 29,690,979 shares of common stock, (ii) warrants to purchase a total of 8,014,050 shares of common stock, and (iii) conversion right under a promissory note which allows the RHL Group to convert up to $500,000 worth of principal at one cents per share, yielding 41,666,667 shares of common stock if the full amount were to be converted. |
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(2) |
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Based on 250,060,616 shares of MMRGlobal, Inc. common stock, par value $0.001 per share, outstanding as of June 08, 2016, plus 49,680,717 shares of MMRGlobal, Inc. common stock issuable upon the exercise of outstanding warrants and conversion rights which are exercisable within 60 days of June 08, 2016.
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CUSIP No. 55314U207
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1. |
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NAMES OF REPORTING PERSON Robert H. Lorsch |
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2. |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ¨ |
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3. |
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SEC USE ONLY
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4. |
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SOURCE OF FUNDS*
OO |
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5. |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) ¨
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6. |
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CITIZENSHIP OR PLACE OF ORGANIZATION
California, United States of America |
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
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7. SOLE VOTING POWER
14,699,752 8. SHARED VOTING POWER
79,371,696 (1) 9. SOLE DISPOSITIVE POWER
14,699,752 10. SHARED DISPOSITIVE POWER
79,371,696 (1) |
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11. |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
94,071,448 (2) |
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12. |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
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13. |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.1% (3) |
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14. |
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TYPE OF REPORTING PERSON
IN |
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4
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(1) |
Reflects securities directly held by The RHL Group, Inc., which is wholly-owned and controlled by Mr. Lorsch. |
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(2) |
Consists of (i) 1,863,752 shares of common stock held directly by Mr. Lorsch and 29,690,979 shares of common stock held directly by The RHL Group, Inc., (ii) warrants held by The RHL Group, Inc. to purchase 8,014,050 shares of common stock, (iii) a conversion right under a The RHL Group promissory note which allows the RHL Group to convert up to $500,000 worth of principal at one cents per share, yielding 41,666,667 shares of common stock if the full amount were to be converted, and (iv) stock options and warrants held by Mr. Lorsch to purchase 12,836,000 shares of common stock. |
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(3) |
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Based on 250,060,616 shares of MMRGlobal, Inc. common stock, par value $0.001 per share, outstanding as of June 08, 2016, plus 12,836,000 shares of MMRGlobal, Inc. common stock issuable upon the exercise of outstanding warrants and conversion rights which are exercisable within 60 days of June 08, 2016. |
5
Introduction
This constitutes Amendment No. 5 to the statement on Schedule 13D, filed on behalf of The RHL Group, Inc., a corporation organized under the laws of the State of California ("The RHL Group"), and Robert H. Lorsch (together with The RHL Group, the "Reporting Persons"), dated January 30, 2009 (the "Statement"), relating to the common stock, par value $0.001 per share of MMRGlobal, Inc. Unless specifically amended or modified hereby, the disclosure set forth in the Statement shall remain unchanged and capitalized terms used herein but not otherwise defined herein shall have the meaning as set forth in the Statement.
Item 1. Security and Issuer.
Item 1 of the Statement is hereby amended and restated in its entirety with the following:
The class of equity securities to which this Schedule 13D relates is the common stock, par value $0.001 per share (the "Issuer Common Stock"), of MMRGlobal, Inc., a corporation organized under the laws of the State of Delaware (the "Issuer"). The Issuer was formerly known as Favrille, Inc. The Issuer currently utilizes space at facilities located at 4401 Wilshire Blvd., Beverly Hills, CA.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Statement is hereby supplemented by including the following:
On August 6, 2009, the Issuer granted to Mr. Lorsch an option to purchase 1,800,000 shares of Issuer Common Stock at an exercise price of $0.625 per share, the closing price of the Issuer's Common Stock on the date immediately preceding the date of grant, with all shares being vested as of the date of this Amendment No. 5. Mr. Lorsch received the foregoing stock option pursuant to his employment agreement with the Issuer, dated as of January 27, 2009.
On May 12, 2010, the Issuer and The RHL Group entered into a Waiver Agreement, pursuant to which, in consideration of The RHL Group's waiver of MMR's payment default under that certain Fourth Amended and Restated Note (the "Fourth Note"), issued by MMR to The RHL Group on April 29, 2010, the Issuer granted to The RHL Group a warrant to purchase an aggregate of 522,937 shares of Issuer Common Stock (the "RHL Warrant"), with an exercise price equal to $1.05 per share, the closing price of the Issuer's Common Stock on the effective date of the Fourth Note.
On May 20, 2010, The RHL Group exercised a warrant to purchase 320,000 shares of Issuer Common Stock at an exercise price of $0.625 per share.
On July 8, 2010, Mr. Lorsch exercised an option to purchase 141,321 shares of the Issuer Common Stock at an exercise price of $0.625 per share.
From March 10 to March 25, 2011, Mr. Lorsch exercised an option to purchase a total of 48,000 shares of the Issuer Common Stock at an exercise price of $0.625 per share.
On May 27, 2011, The RHL Group exercised a warrant to purchase 320,000 shares of Issuer Common Stock at an exercise price of $0.625 per share.
On May 10, 2011, the Issuer granted RHL Group an option to purchase 559,314 shares of Issuer Common Stock at 0.255 per share in conjunction with the Fifth Amended Note.
On November 11, 2011, the Issuer granted RHL Group (i) 25,000 shares of Issuer Common Stock at 0.230 per share, and (ii) an option to purchase 125,000 shares of Issuer Common Stock at an exercise price of $0.230 per share, with all shares being vested immediately.
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On April 6, 2012, the Issuer granted Mr. Lorsch (i) 94,000 shares of Issuer Common Stock at 0.1595 per share, (ii) an option to purchase 250,000 shares of Issuer Common Stock at an exercise price of $0..300 per share, with all shares being vested annually over two years, and (iii) a warrant to purchase 94,000 shares of Issuer Common Stock at an exercise price of $0.1595 per share.
On April 19, 2012, The RHL Group exercised a warrant to purchase 200,000 shares of Issuer Common Stock at an exercise price of $0.255 per share.
On June 26, 2012, the Issuer granted The RHL Group an option to purchase 570,440 shares of Issuer Common Stock at 0.100 per share in conjunction with the Sixth Amended Note.
On June 27, 2012, the Issuer granted The RHL Group Conversion Rights as part of the Seventh Amended and Restated Secured Promissory Note dated July 30, 2012, which provides The RHL Group with the right to convert up to $500,000 of the outstanding and unpaid principal and accrued interest, if any, at the time of conversion at two cents per share. The conversion right is valid until the Promissory Note and any future amendments are superseded or paid in full.
On July 31, 2012, the Issuer granted The RHL Group a warrant to purchase 611,087 shares of Issuer Common Stock at an exercise price of $0.100 per share in consideration for The RHL Group providing guarantees totaling $763,858 in connection with the renewal of convertible notes dated 9/21/2010, 4/15/2011, 7/19/2011, 7/26/2010, and 12/1/2010. The warrant was fully vested as of 07/31/2012.
On April 29, 2013, the Issuer granted The RHL Group Conversion Rights as part of the Eight Amended and Restated Secured Promissory Note dated April 29, 2013, which provides The RHL Group with the right to convert up to $500,000 of the outstanding and unpaid principal and accrued interest, if any, at the time of conversion at two cents per share. The conversion right is valid until the Promissory Note and any future amendments are superseded or paid in full.
On May 10, 2013, the Issuer granted Mr. Lorsch 250,000 shares of Issuer Common Stock at $0.300 per share as an incentive with a vesting date of January 14, 2014.
On August 13, 2013, the Issuer granted The RHL Group a warrant to purchase 570,440 shares of Issuer Common Stock at 0.250 per share in conjunction with the Eight Amended Note.
On December 31, 2013, the Issuer granted Mr. Lorsch 200,000 shares of Issuer Common Stock at $0.250 per share as an incentive with a vesting date of January 14, 2015.
On April 29, 2014, the Issuer granted The RHL Group Conversion Rights as part of the Ninth Amended and Restated Secured Promissory Note dated April 29, 2014, which provides The RHL Group with the right to convert up to $500,000 of the outstanding and unpaid principal and accrued interest, if any, at the time of conversion at two cents per share. The conversion right is valid until the Promissory Note and any future amendments are superseded or paid in full.
On July 10, 2014, the Issuer granted The RHL Group a warrant to purchase 556,313 shares of Issuer Common Stock at 0.175 per share in conjunction with the Ninth Amended Note.
On February 17, 2015, the Issuer granted Mr. Lorsch 200,000 shares of Issuer Common Stock at $0.045 per share in exchange for a reduction in related party payables.
On February 18, 2015, the Issuer granted The RHL Group 200,000 shares of Issuer Common Stock at $0.045 per share in exchange for a reduction in debt.
On May 19, 2015, the Issuer granted The RHL Group 8,000,000 shares of Issuer Common Stock at $0.015 per share in exchange for a reduction in debt.
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On May 20, 2015, the Issuer granted The RHL Group Conversion Rights as part of the Tenth Amended and Restated Secured Promissory Note dated May 20, 2015, which provides The RHL Group with the right to convert up to $500,000 of the outstanding and unpaid principal and accrued interest, if any, at the time of conversion at two cents per share. The conversion right is valid until the Promissory Note and any future amendments are superseded or paid in full.
On May 20, 2015, the Issuer granted The RHL Group an option to purchase 352,929 shares of Issuer Common Stock at 0.015 per share in conjunction with the Tenth Amended Note.
On October 22, 2015, the Issuer granted The RHL Group 9,200,000 shares of Issuer Common Stock at $0.019 per share in exchange for a reduction in debt.
On May 12, 2016, The RHL Group, Inc., an entity affiliated with our Chairman & CEO Robert H. Lorsch, elected to purchase 5,000,000 shares of common stock at a price of $0.02 per share in consideration of partial waiver of principal amount under the Tenth Amended Note.
On May 12, 2016, the Issuer granted Robert H. Lorsch, our Chairman & CEO, a warrant to acquire 10,000,000 shares of common stock in consideration for services. The warrant has an exercise price of $0.02 per share, with an expiration date of May 13, 2019, and is immediately vested at the date of grant.
On June 06, 2016, the Issuer granted The RHL Group Conversion Rights as part of the Eleventh Amended and Restated Secured Promissory Note dated July 30, 2012, which provides The RHL Group with the right to convert up to $500,000 of the outstanding and unpaid principal and accrued interest, if any, at the time of conversion at one and 2 tenths of a cent Per share (.012). The conversion right is valid until the Promissory Note and any future amendments are superseded or paid in full.
On June 06, 2016, the Issuer granted The RHL Group an option to purchase 2,777,714 shares of Issuer Common Stock at $.0125 per share in conjunction with the Eleventh Amended Note
Any references to, and/or descriptions of the Stock Option Agreement(s), between the Issuer and Mr. Lorsch, the Lorsch Warrant(s), the RHL Warrant(s) and the RHL Conversion Rights are not intended to be complete and are qualified in their entirety by reference to the full of text of such documents.
Item 4. Purpose of Transaction.
Item 4 of the Statement is hereby supplemented by including the following:
This Amendment No. 5 is being filed to report that, since the filing of the Statement, a material change occurred in the percentage of shares of Issuer Common Stock beneficially owned by the Reporting Persons. The material change occurred solely because of the reasons set forth in Item 3 of this Amendment No. 5, which is incorporated herein by this reference. Furthermore the Company completed a five for one reverse split on February 5, 2016. Also based on the $500,000 conversion feature the Company's Amended and restated notes to The RHL Group including the Eleventh Amended and Restated Secured Promissory significantly greater number of shares are subject to being converted within the next sixty days at the option of the noteholder.
Item 5. Interest in Securities of the Issuer.
Item 5 of the Statement is hereby amended and restated in its entirety as follows:
The information contained on each of the cover pages of this Statement and the information set forth or incorporated by reference in Items 2, 3, 4 and 6 is hereby incorporated by reference herein.
(a)-(b)
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The RHL Group directly owns (i) 29,690,979 shares of Issuer Common Stock, (ii) warrants to purchase 8,014,050 shares of Issuer Common Stock, and (iii) a conversion right which allows them to purchase up to 41,666,667 shares of Issuer Common Stock through the conversion of up to $500,000 of principal and unpaid interest under the Eleventh Amended and Restated Secured Promissory Note dated June 06, 2016 which collectively represents approximately 26.5% of the outstanding shares of Issuer Common Stock, based on 250,060,616 shares of Issuer Common Stock outstanding as of June 06, 2016. As described in Item 2, Mr. Lorsch is the Chief Executive Officer of The RHL Group and has a 100% ownership interest in The RHL Group. Therefore, Mr. Lorsch may be deemed to be the beneficial owner of the Issuer Common Stock beneficially held by The RHL Group and The RHL Group shares voting and dispositive power over such shares of Issuer Common Stock with Robert H. Lorsch.
Mr. Lorsch directly owns (i) 1,863,752 shares of Issuer Common Stock, and (ii) stock options and warrants to purchase 12,836,000 shares of common stock. As holder of a 100% interest in The RHL Group, Mr. Lorsch shares voting and dispositive power over 79,371,696 shares held by The RHL Group. Thus, Mr. Lorsch may be deemed to beneficially own 94,071,448 shares of Issuer Common Stock, or approximately 32.1% of the outstanding shares, based on 250,060,616 shares of Issuer Common Stock outstanding as of June 08, 2016.
(c) None of the Reporting Persons has effected any transaction in the shares of Issuer Common Stock during the past 60 days, except as disclosed herein.
(d) To the best knowledge of the Reporting Persons, no person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities beneficially owned by the Reporting Persons identified in this Item 5.
(e) Not applicable.
Item 7. Material to be Filed as Exhibits.
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EXHIBIT |
DESCRIPTION |
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99.1 |
Eighth Amended and Restated Secured Promissory Note dated August 13, 2013 by and among MMRGlobal, Inc., MyMedicalRecords, Inc., and The RHL Group, Inc. |
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99.2 |
Warrant dated August 13, 2013 issued by MMRGlobal, Inc. in favor of the RHL Group, Inc. |
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99.3 |
Warrant dated July 10, 2014 issued by MMRGlobal, Inc. in favor of the RHL Group, Inc. |
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99.4 |
Ninth Amended and Restated Secured Promissory Note dated July 10, 2014 by and among MMR Global, Inc., MyMedicalRecords, Inc., and The RHL Group, Inc. |
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99.5 |
Warrant dated May 20, 2015 issued by MMRGlobal, Inc. in favor of The RHL Group, Inc. |
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99.6 |
Tenth Amended and Restated Secured Promissory Note dated May 20, 2015 by and among MMRGlobal Inc., MyMedicalRecords, Inc., and The RHL Group, Inc. |
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99.7 |
Warrant dated May 12, 2016 issued by MMRGlobal Inc. in favor of the Robert H. Lorsch. |
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99.8 |
Eleventh Amended and Restated Secured Promissory Note dated June 06, 2016 by and among MMRGlobal Inc., MyMedicalRecords, Inc., and The RHL Group, Inc. |
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: June 9, 2016
THE RHL GROUP, INC.
By: /s/ Robert H. Lorsch
Robert H. Lorsch
Chief Executive Officer
ROBERT H. LORSCH
By: /s/ Robert H. Lorsch
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EXHIBIT INDEX
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EXHIBIT |
DESCRIPTION |
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99.1 |
Eighth Amended and Restated Secured Promissory Note dated August 13, 2013 by and among MMRGlobal, Inc., MyMedicalRecords, Inc., and The RHL Group, Inc. |
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99.2 |
Warrant dated August 13, 2013 issued by MMRGlobal, Inc. in favor of the RHL Group, Inc. |
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99.3 |
Warrant dated July 10, 2014 issued by MMRGlobal, Inc. in favor of the RHL Group, Inc. |
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99.4 |
Ninth Amended and Restated Secured Promissory Note dated July 10, 2014 by and among MMR Global, Inc., MyMedicalRecords, Inc., and The RHL Group, Inc. |
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99.5 |
Warrant dated May 20, 2015 issued by MMRGlobal, Inc. in favor of The RHL Group, Inc. |
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99.6 |
Tenth Amended and Restated Secured Promissory Note dated May 20, 2015 by and among MMRGlobal Inc., MyMedicalRecords, Inc., and The RHL Group, Inc. |
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99.7 |
Warrant dated May 12, 2016 issued by MMRGlobal Inc. in favor of the Robert H. Lorsch. |
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99.8 |
Eleventh Amended and Restated Secured Promissory Note dated June 06, 2016 by and among MMRGlobal Inc., MyMedicalRecords, Inc., and The RHL Group, Inc. |
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Exhibit 99.1
[Execution Copy]
EIGHTH AMENDED AND RESTATED SECURED PROMISSORY NOTE
(For Revolving Line of Credit, Advances and Guaranteed Obligations)
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(Up to) $4,500,000 |
April 29, 2013 |
Los Angeles, California |
$1,259,435.50 (current balance under Revolving Line of Credit)
$2,852,522.59 (total Unpaid Balance)
For Value Received, the undersigned MyMedicalRecords, Inc. (formerly mymedicalrecords.com, Inc.), a Delaware corporation ("Subsidiary") and MMRGlobal, Inc. (formerly MMR Information Systems, Inc., formerly Favrille, Inc.), a Delaware corporation ("Parent") (together, "Borrower"), promises to pay to the order of The RHL Group, Inc., a California corporation ("Lender"), the sum of up to Four Million Five Hundred Thousand Dollars ($4,500,000) on a revolving basis (sometimes referred to as a "Reserve Line of Credit" herein) 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, as amended on June 30, 2012 under the First Amended Security Agreement (together, the "Security Agreement"), which grants certain security interests in the Collateral owned by Borrower, as therein defined. Borrower and Lender agree that the terms of this Eighth Amended and Restated Secured Promissory Note ("Seventh Amended Note") apply to the increased Reserve Line of Credit.
This Eighth 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 Restated 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, which was further amended by the Third Amended and Restated Secured Promissory Note dated April 29, 2009 (the "Third Amended Note"), which was further amended by the Fourth Amended and Restated Secured Promissory Note dated April 29, 2010 (the "Fourth Amended Note"), which was further amended by the Fifth Amended and Restated Secured Promissory Note dated April 29, 2011 (the "Fifth Amended Note") and further amended by the Sixth Amended and Restated Secured promissory Note dated April 29, 2012 (the "Sixth Amended Note"). As stated therein, the Original Note, the First Amended Note, the Second Amended Note, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note the Sixth Amended Note, and the Seventh Amended Note provided for increases, if necessary, in the amount of the Reserve Line of Credit, and the terms of the Security Agreement provide for that agreement to apply to advances in excess of the therein stated "Amount". The terms of the Security Agreement shall
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PROMISSORY NOTE |
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be deemed to apply to, and a security interest is hereby granted to the Lender, for all advances made, under this Eighth Amended Note to the same extent, validity, security and priority as to advances under the Original Note, the First Amended Note, the Second Amended Note, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note, the Sixth Amended Note, with the exception that the Seventh Amended Note, the Security Agreement, and this Eighth Amended Note, as well, is deemed to apply to the Parent as well as to the Subsidiary.
The original of the First Amended Note, Second Amended Note, Third Amended Note, including the Allonge, Fourth Amended Note, Fifth Amended Note, Sixth Amended Note, and Seventh Amended Note have been marked as "superseded". If and only if the Eighth Amended Note is deemed unenforceable, or if the Security Agreement is, for any reason, deemed not to apply to the Eighth Amended Note, then the terms of the Seventh Amended Note, (or the Sixth Amended Note, the Fifth Amended Note or the Fourth Amended Note or the Third Amended Note or the Second Amended Note including the Allonge, or the First Amended Note or the Original Note, and the Guaranty previously signed by the Parent, 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.
The term "Unpaid Balance" shall mean all of the following: (a) the funds actually lent to the Borrower, or either the Parent or the Subsidiary, including interest, fees, and costs thereon (which includes reasonable legal expenses and costs of Lender in connection with this Eighth 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 personal guarantees by Robert H. Lorsch as approved by the Board of Directors), (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 balance under the Revolving Line of Credit, but shall reduce the balance available under the Reserve Line of Credit.
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, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note, the Sixth Amended, the Seventh Amended Note, or the Eighth Amended Note, or the Security Agreement, as amended from time to time, 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: (a) the obligation to pay interest on a monthly basis, and the obligation to pay the Credit Card Advances, if any, 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, April 29, 2014 (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 and any amounts
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PROMISSORY NOTE |
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due under any still then outstanding guarantees of Lender at the option of Lender. Notwithstanding anything to the contrary in this Note, or any of the predecessor notes that have been marked as "superseded", the Subsidiary shall pay at least $1,000 per month, starting on August 1, 2013, to the holder of this Note.
Upon the occurrence of an Event of Default, as defined in this Note or the Security Agreement, the Final Maturity Date shall be accelerated as against the Parent, the Subsidiary, or both, 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 $2,852,522.59 as of April 30, 2013, that the amount under the revolving line is $1,259,435.50 (not including consulting fees and guarantees as per the last sentence under the "Unpaid Balance" paragraph above), 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.
Lender will receive, concurrently with the execution of this Eight Amended Note, 2,852,200 warrants to acquire shares of Parent's common stock at an exercise price of $0.05 per share which represents two warrants per dollar outstanding on the Note as of the renewal date. Such warrants shall be fully vested and be exercisable in cash or in a cashless exercise at any time prior to their fifth anniversary of issuance, and which shall be non-transferrable without the consent of Parent, which consent is not to be unreasonably withheld.
All payments on this Note are payable at, and all writings respecting the warrants shall be sent to, Lender's accountant at the following address, with a copy to Borrower: Anderson Financial, 12021 Wilshire Blvd., Suite 866, Los Angeles, California 90025, Attn: Marilyn Anderson, and RHL Group, PO Box 17034, Beverly Hills, CA 90210, or at such other place as the Lender or any other holder hereof shall notify Borrower in writing.
All payments received by the Lender on this Note may be applied by Lender as follows: first, to the payment of all fees and expenses owed under this Note or the Security Agreement; second, to the payment of accrued and unpaid interest then due and owing; and third, to principal or as otherwise indicated by Lender.
This Note may be prepaid in whole or in part, without penalty. In the event of partial prepayments, the prepayments and proceeds shall be applied as described in the just preceding paragraph.
At any time or times on or after the date hereof (or, to avoid the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, regarding "short swing profits", six months and one day from the date of the holder's last purchase or sale of equity securities of the Company), the Lender shall be entitled to convert up to Five Hundred Thousand Dollars of the outstanding and unpaid Conversion Amount (as defined
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PROMISSORY NOTE |
Page 3 of 7 |
below) into fully paid and nonassessable shares of the Parent's Common Stock (the "Common Stock") at the Conversion Rate (as defined below). The Company shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock down to the nearest whole share and the difference shall remain outstanding as Unpaid Balance under this Note until paid in accordance herewith. To convert any Conversion Amount into shares of Common Stock on any date (a "Conversion Date"), the Holder shall deliver to the Company a written notice of conversion so requesting at least ten (10) days prior to the requested Conversion Date (a "Conversion Request"). Such Conversion Amount shall convert (a "Conversion Event") into fully paid and nonassessable shares of Common Stock at the Conversion Rate in the manner specified in below.
The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to the foregoing paragraph shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price (as defined below) (the "Conversion Rate").
As used herein, the term "Conversion Amount" means the sum of (A) the portion of the Principal to be converted with respect to which this determination is being made, which shall not exceed $500,000 in the aggregate, and (B) accrued and unpaid Interest with respect to such Principal, and the term "Conversion Price" shall be equal to $0.02 per share of Common Stock.
On or before a Conversion Event, the Lender shall surrender this Note (or an indemnification undertaking with respect to this Note in the case of its loss, theft or destruction), duly endorsed, at the Company's principal corporate office, and provide in writing the name or names in which the certificate or certificates for shares of Common Stock are to be issued. The Company shall, at its expense and as soon as practicable, thereafter issue and deliver, or cause its transfer agent to issue and deliver, to the Lender, or to the nominee or nominees of the Lender, a certificate or certificates for the number of shares of Common Stock to which the Lender shall be entitled. The person or persons entitled to receive the shares of Common Stock issuable upon a Conversion Event shall be treated for all purposes as the record holder or holders of such shares as of the Conversion Date. If this Note is physically surrendered for conversion and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being converted, then the Company shall as soon as practicable and in no event later than five (5) Trading Days after receipt of this Note, and at its own expense, issue and deliver to the Lender a new Note representing the outstanding Principal not converted.
Notwithstanding anything else in this Agreement, the entire Unpaid Balance shall be due and owing, without extension on
the occurrence of any of the following, unless otherwise agreed by Lender in writing: (a) a change in ownership or control of Borrower in an
amount equal to or greater than one-third (1/3) of outstanding voting stock, other than transactions on a publicly traded market in the regular
course of trading; (b) a transfer of at least one-third (1/3) of the assets of Borrower; (c) a change in the composition of Borrower's Board of
Directors, Officers and/or senior management which is not approved by Lender; (d) Parent or Subsidiary shall first be
the subject of a case pending in any United States Bankruptcy Court; (e) Parent or Subsidiary shall suffer the appointment of a receiver
appointed in any state or federal court action, or other
PROMISSORY NOTE
Page 4 of 7
proceeding; (f) Parent or Subsidiary shall be the subject of any writ of attachment or writ of
execution; (g) Parent or Subsidiary shall not be in full compliance with all of its covenants in prior agreements by August 31, 2013; (h) Parent and
Subsidiary shall fall out of compliance with its covenants on or after August 31,2013; (i) Borrower shall have less than $200,000 in cash
in its bank accounts
The Security Agreement, as amended from time to time, relating to the Original Note, the Amended Note, the Second Amended Note, the Third Amended Note, The Fourth Amended Note, the Fifth Amended Note, the Sixth Amended Note, the Seventh Amended Note, and this Eighth Amended Note shall jointly be referred to as the "Loan Documents".
Upon the happening of any failure to make any payment under the Loan Documents, or any other "Event of Default" as defined in the Security Agreement, as amended from time to time, Lender may at its option declare the entire unpaid balance of this Note, together with interest accrued thereon, to be immediately due and payable. Upon receiving notice of Default, Borrower will have 15 calendar days to cure such Event of Default. In the event the Borrower fails to cure the default, the Lender may proceed to exercise any rights or remedies that it may have under any of the Loan Documents or under this Note or such other rights and remedies which, subject to the provisions of this Note and Loan Documents, the Lender may have at law, equity or otherwise. In the event of such acceleration, Borrower may discharge its obligations to the Lender by paying the unpaid balance hereof as of the date of such payment, plus accrued interest and fees, in the manner set forth above.
Upon an Event of Default (as defined in the Security Agreement, as amended from time to time), the interest rate hereunder shall be computed as the higher of: (a) the highest rate then allowed by law, or (b) the rate described herein.
After default, in addition to principal and accrued interest, the Lender shall be entitled to collect all costs of collection, including, but not limited to, reasonable attorneys' fees incurred in connection with any of the lender's reasonable collection efforts, whether or not suit on this Note is filed, and all such costs and expenses shall be payable on demand.
No failure on the part of the Lender or other holder hereof to exercise any right or remedy hereunder, whether before or after the happening of a default, shall constitute a waiver thereof, and no waiver of any past default shall constitute waiver of any future default or of any other default. No failure to accelerate the debt evidenced hereby by reason of default hereunder, or acceptance of a past due installment or indulgence granted from time to time shall be construed to be a waiver of the right to insist upon prompt payment thereafter, or shall be deemed to be a novation of this Note or as a reinstatement of the debt evidenced hereby or a waiver of such right
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PROMISSORY NOTE |
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of acceleration or any other right, or be construed so as to preclude the exercise of any right which Lender may have, whether by the laws of the State of California, by agreement or otherwise, and Borrower and each endorser or guarantor hereby expressly waives the benefit of any statute or rule of law or equity which would produce a result contrary to or in conflict with the foregoing. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom such agreement is sought to be enforced.
Borrower and each endorser or guarantor of this Note hereby waives presentment, protest, demand, and diligence, notice of dishonor and notice of nonpayment.
All agreements between Borrower and Lender, whether now existing or hereafter arising, and whether oral or written, are hereby expressly limited so that in no contingency or event whatsoever, whether by acceleration of maturity hereof or otherwise, shall the amount paid or agreed to be paid to Lender of the holder hereof, or collected by Lender or such holder for the use, forbearance or detention of the money to be loaned hereunder or otherwise, or for the payment or performance of any covenant or obligation contained herein, or in any other document pertaining to the indebtedness evidenced hereby, exceed the maximum amount permissible under governing usury laws as applicable in this transaction, If, under any circumstances whatsoever, fulfillment of any provision hereof or of the Loan Documents or any other documents, at the time performance of such provision shall be due, shall involve exceeding the limit of validity prescribed by law for this transaction, then the obligation to be fulfilled shall be reduced to the limit of such validity; and if under any circumstances Lender or other holder hereof shall ever receive an amount deemed interest by applicable law, which would exceed the highest lawful rate allowed for this transaction, such amount that would be excessive interest under governing laws as applicable to this transaction shall be applied to the reduction of the principal amount owing hereunder and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal and such other indebtedness, the excess shall be deemed to have been a payment made by mistake and shall be refunded to Borrower or to any other person making such payment on Borrower's behalf. All sums paid or agreed to be paid to the holder hereto for the use, forbearance or detention of the indebtedness of Borrower evidenced hereby, outstanding from time to time shall, to the extent permitted by governing law, and to the extent necessary to preclude exceeding the limit of validity prescribed by law as applicable to this transaction, shall be amortized, pro-rated, allocated and spread from the date of disbursement of the proceeds of this Note until payment in full of the loan evidenced hereby so that the actual rate of interest on account of such indebtedness is uniform throughout the term hereof. The terms and provisions of this paragraph shall control and supersede every other provision of all agreements between Borrower, and endorser or guarantor and Lender.
This Note shall be governed by and construed under the laws of the State of California applicable to contracts made and to be performed entirely in that State without regard to the principles thereof regarding conflict of laws. Borrower and each endorser or guarantor hereby submits to personal jurisdiction in said State for the enforcement of Borrower's obligations hereunder, and waives any and all personal rights under the law of the other state to object to jurisdiction within such State for the purposes of litigation to enforce such obligations of Borrower. In the event such litigation is commenced, Borrower agrees that service of process may be made and personal jurisdiction over Borrower obtained, by service of a copy of the
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summons, complaint and other pleadings required to commence such litigation upon Borrower's appointed agent for service of process in such state with a copy to:
Ingrid Safranek (isafranek@mmrmail.com)
MMRGlobal, Inc.
MyMedicalRecords, Inc.
4401 Wilshire Blvd., Suite 200
Los Angeles, CA 90010
The holder of this note shall be entitled, without limitation, to all of the rights and remedies of the Lender under the Loan Agreements with respect to this Note. In the event of any conflict between the terms and conditions of the Security Agreement and those of this Note, the terms and conditions of this Note shall control. The obligations of Borrower pursuant to this Note are secured by the Security Agreement.
Borrower represents that it has obtained all of the corporate authority necessary to execute this Note.
IN WITNESS WHEREOF, Borrower has executed this instrument by its duly authorized signatories as of the date first above written.
"Borrower"
MyMedicalRecords, Inc., a Delaware corporation ("Subsidiary")
Name: Ingrid Safranek
Title: CFO
Signature: _______________________________________
Date: August 13, 2013
MMRGlobal, Inc., a Delaware corporation ("Parent")
Name: Ingrid Safranek
Title: CFO
Signature: _______________________________________
Date: August 13, 2013
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PROMISSORY NOTE |
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Exhibit 99.2
Exhibit 99.3
Exhibit 99.4
[Execution Copy]
NINTH AMENDED AND RESTATED SECURED PROMISSORY NOTE
(For Revolving Line of Credit, Advances and Guaranteed Obligations)
|
(Up to) $4,500,000 |
April 29, 2014 |
Los Angeles, California |
$1,513,309 (current balance under Revolving Line of Credit)
$2,781,561 (total Unpaid Balance)
For Value Received, the undersigned MyMedicalRecords, Inc. (formerly mymedicalrecords.com, Inc.), a Delaware corporation ("Subsidiary") and MMRGlobal, Inc. (formerly MMR Information Systems, Inc., formerly Favrille, Inc.), a Delaware corporation ("Parent") (together, "Borrower"), promises to pay to the order of The RHL Group, Inc., a California corporation ("Lender"), the sum of up to Four Million Five Hundred Thousand Dollars ($4,500,000) on a revolving basis (sometimes referred to as a "Reserve Line of Credit" herein) 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, as amended on June 30, 2012 under the First Amended Security Agreement (together, the "Security Agreement"), which grants certain security interests in the Collateral owned by Borrower, as therein defined. Borrower and Lender agree that the terms of this Ninth Amended and Restated Secured Promissory Note ("Ninth Amended Note") apply to the Reserve Line of Credit.
This Ninth 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 Restated 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, which was further amended by the Third Amended and Restated Secured Promissory Note dated April 29, 2009 (the "Third Amended Note"), which was further amended by the Fourth Amended and Restated Secured Promissory Note dated April 29, 2010(the "Fourth Amended Note"), which was further amended by the Fifth Amended and Restated Secured Promissory Note dated April 29, 2011 (the "Fifth Amended Note") and further amended by the Sixth Amended and Restated Secured Promissory Note dated April 29, 2012 (the "Sixth Amended Note"), which was further amended by the Seventh Amended and Restated Secured Promissory Note (the "Seventh Amended Note") dated July 30, 2012, which was further amended by the Eighth Amended and Restated Secured Promissory Note (the "Eighth Amended Note") dated April 29, 2013. As stated therein, the Original Note, the First Amended Note, the Second Amended Note, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note the Sixth Amended Note,
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PROMISSORY NOTE |
Page 1 of 8 |
the Seventh Amended Note, and the Eighth Amended Note provided for increases, if necessary, in the amount of the Reserve Line of Credit, and the terms of the Security Agreement 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 Ninth Amended Note to the same extent, validity, security and priority as to advances under the Original Note, the First Amended Note, the Second Amended Note, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note, the Sixth Amended Note, the Seventh Amended Note, and the Eighth Amended Note, with the exception that the Seventh Amended Note, the Eight Amended Note, and this Ninth Amended Note and the Security Agreement, are deemed to apply to the Parent as well as to the Subsidiary.
The original of the First Amended Note, Second Amended Note, Third Amended Note, including the Allonge, Fourth Amended Note, Fifth Amended Note, Sixth Amended Note, Seventh Amended Note, and Eighth Amended Note have been marked as "superseded". If and only if the Ninth Amended Note is deemed unenforceable, or if the Security Agreement is, for any reason, deemed not to apply to the Ninth Amended Note, then the terms of the Eighth Amended Note, (or the Seventh Amended Note, Sixth Amended Note, the Fifth Amended Note or the Fourth Amended Note or the Third Amended Note or the Second Amended Note including the Allonge, or the First Amended Note or the Original Note, and the Guaranty previously signed by the Parent, 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.
The term "Unpaid Balance" shall mean all of the following: (a) the funds actually lent to the Borrower, or either the Parent or the Subsidiary, including interest, fees, and costs thereon (which includes reasonable legal expenses and costs of Lender in connection with this Ninth 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 personal guarantees by Robert H. Lorsch as approved by the Board of Directors), (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 balance under the Revolving Line of Credit, but shall reduce the balance available under the Reserve Line of Credit.
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, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note, the Sixth Amended, the Seventh Amended Note, the Eighth Amended Note, or the Ninth Amended Note, or the Security Agreement, as amended from time to time, 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: (a) the obligation to pay interest on a monthly basis, and the obligation to pay the Credit Card Advances, if any, shall continue to be due and payable on a
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PROMISSORY NOTE |
Page 2 of 8 |
monthly basis, and (b) unless otherwise agreed in writing by Lender, the entire unpaid balance shall be due and owing, without extension, April 29, 2015 (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 and any amounts due under any still then outstanding guarantees of Lender at the option of Lender. Notwithstanding anything to the contrary in this Note, or any of the predecessor notes that have been marked as "superseded", the Subsidiary shall pay at least $1,000 per month, starting on August 1, 2013, to the holder of this Note.
Upon the occurrence of an Event of Default, as defined in this Note or the Security Agreement, the Final Maturity Date shall be accelerated as against the Parent, the Subsidiary, or both, 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 $2,781,561.68 as of April 30, 2014, that the amount under the revolving line is $1,513,308.61 (not including consulting fees and guarantees as per the last sentence under the "Unpaid Balance" paragraph above), 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.
Lender will receive, concurrently with the execution of this Eight Amended Note, 2,781,562 warrants to acquire shares of Parent's common stock at an exercise price of $0.035 per share which represents one warrant per dollar outstanding on the Unpaid Balance of the Note as of the renewal date. Such warrants shall be fully vested and be exercisable in cash or in a cashless exercise at any time prior to their fifth anniversary of issuance, and which shall be non-transferrable without the consent of Parent, which consent is not to be unreasonably withheld.
All payments on this Note are payable at, and all writings respecting the warrants shall be sent to, Lender's accountant at the following address, with a copy to Borrower: Anderson Financial, 12021 Wilshire Blvd., Suite 866, Los Angeles, California 90025, Attn: Marilyn Anderson, and RHL Group, PO Box 17034, Beverly Hills, CA 90210, or at such other place as the Lender or any other holder hereof shall notify Borrower in writing.
All payments received by the Lender on this Note may be applied by Lender as follows: first, to the payment of all fees and expenses owed under this Note or the Security Agreement; second, to the payment of accrued and unpaid interest then due and owing; and third, to principal or as otherwise indicated by Lender.
This Note may be prepaid in whole or in part, without penalty. In the event of partial prepayments, the prepayments and proceeds shall be applied as described in the just preceding paragraph.
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PROMISSORY NOTE |
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At any time or times on or after the date hereof (or, to avoid the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, regarding "short swing profits", six months and one day from the date of the holder's last purchase or sale of equity securities of the Company), the Lender shall be entitled to convert up to Five Hundred Thousand Dollars ($500,000.00) of the outstanding and unpaid Conversion Amount (as defined below) into fully paid and nonassessable shares of the Parent's Common Stock (the "Common Stock") at the Conversion Rate (as defined below). The Company shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock down to the nearest whole share and the difference shall remain outstanding as Unpaid Balance under this Note until paid in accordance herewith. To convert any Conversion Amount into shares of Common Stock on any date (a "Conversion Date"), the Holder shall deliver to the Company a written notice of conversion so requesting at least ten (10) days prior to the requested Conversion Date (a "Conversion Request"). Such Conversion Amount shall convert (a "Conversion Event") into fully paid and nonassessable shares of Common Stock at the Conversion Rate in the manner specified in below.
The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to the foregoing paragraph shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price (as defined below) (the "Conversion Rate").
As used herein, the term "Conversion Amount" means the sum of (A) the portion of the Principal to be converted with respect to which this determination is being made, which shall not exceed $500,000 in the aggregate, and (B) accrued and unpaid Interest with respect to such Principal, and the term "Conversion Price" shall be equal to $0.02 per share of Common Stock.
On or before a Conversion Event, the Lender shall surrender this Note (or an indemnification undertaking with respect to this Note in the case of its loss, theft or destruction), duly endorsed, at the Company's principal corporate office, and provide in writing the name or names in which the certificate or certificates for shares of Common Stock are to be issued. The Company shall, at its expense and as soon as practicable, thereafter issue and deliver, or cause its transfer agent to issue and deliver, to the Lender, or to the nominee or nominees of the Lender, a certificate or certificates for the number of shares of Common Stock to which the Lender shall be entitled. The person or persons entitled to receive the shares of Common Stock issuable upon a Conversion Event shall be treated for all purposes as the record holder or holders of such shares as of the Conversion Date. If this Note is physically surrendered for conversion and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being converted, then the Company shall as soon as practicable and in no event later than five (5) Trading Days after receipt of this Note, and at its own expense, issue and deliver to the Lender a new Note representing the outstanding Principal not converted.
Notwithstanding anything else in this Agreement, the entire Unpaid Balance shall be due and owing, without extension on the occurrence of any of the following, unless otherwise agreed by Lender in writing: (a) a change in ownership or control of Borrower in an amount equal to or
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PROMISSORY NOTE |
Page 4 of 8 |
greater than one-third (1/3) of outstanding voting stock, other than transactions on a publicly traded market in the regular course of trading; (b) a transfer of at least one-third (1/3) of the assets of Borrower; (c) a change in the composition of Borrower's Board of Directors, Officers and/or senior management which is not approved by Lender; (d) Parent or Subsidiary shall first be the subject of a case pending in any United States Bankruptcy Court; (e) Parent or Subsidiary shall suffer the appointment of a receiver appointed in any state or federal court action, or other proceeding; (f) Parent or Subsidiary shall be the subject of any writ of attachment or writ of execution; (g) Parent or Subsidiary shall not be in full compliance with all of its covenants in prior agreements by August 31, 2014; (h) Parent and Subsidiary shall fall out of compliance with its covenants on or after August 31,2014; (i) Borrower shall have less than $200,000 in cash in its bank accounts or such other amount as necessary to maintain operations, whichever is greater, through the subsequent thirty (30) days on and after August 31, 2014; or (j) Subsidiary and Parent shall not timely pay any obligations due respecting payroll and all associated payroll taxes at any time during the term of the Note. Notwithstanding the foregoing sentence, Lender hereby expressly waives, both now and in the future, any Default or Event of Default under this Note and the Security Agreement that arises from or is related to the Closing (as that term is defined in the Agreement and Plan of Merger and Reorganization dated November 8, 2008 by and among Borrower, Parent and a wholly-owned merger subsidiary of Parent (the "Merger Agreement") and the consummation of the transactions described in the Merger Agreement.
The Security Agreement, as amended from time to time, relating to the Original Note, the Amended Note, the Second Amended Note, the Third Amended Note, The Fourth Amended Note, the Fifth Amended Note, the Sixth Amended Note, the Seventh Amended Note, the Eighth Amended Note, and this Ninth Amended Note shall jointly be referred to as the "Loan Documents".
Upon the happening of any failure to make any payment under the Loan Documents, or any other "Event of Default" as defined in the Security Agreement, as amended from time to time, Lender may at its option declare the entire unpaid balance of this Note, together with interest accrued thereon, to be immediately due and payable. Upon receiving notice of Default, Borrower will have 15 calendar days to cure such Event of Default. In the event the Borrower fails to cure the default, the Lender may proceed to exercise any rights or remedies that it may have under any of the Loan Documents or under this Note or such other rights and remedies which, subject to the provisions of this Note and Loan Documents, the Lender may have at law, equity or otherwise. In the event of such acceleration, Borrower may discharge its obligations to the Lender by paying the unpaid balance hereof as of the date of such payment, plus accrued interest and fees, in the manner set forth above.
Upon an Event of Default (as defined in the Security Agreement, as amended from time to time), the interest rate hereunder shall be computed as the higher of: (a) the highest rate then allowed by law, or (b) the rate described herein.
After default, in addition to principal and accrued interest, the Lender shall be entitled to collect all costs of collection, including, but not limited to, reasonable attorneys' fees incurred in connection with any of the lender's reasonable collection efforts, whether or not suit on this Note is filed, and all such costs and expenses shall be payable on demand.
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PROMISSORY NOTE |
Page 5 of 8 |
No failure on the part of the Lender or other holder hereof to exercise any right or remedy hereunder, whether before or after the happening of a default, shall constitute a waiver thereof, and no waiver of any past default shall constitute waiver of any future default or of any other default. No failure to accelerate the debt evidenced hereby by reason of default hereunder, or acceptance of a past due installment or indulgence granted from time to time shall be construed to be a waiver of the right to insist upon prompt payment thereafter, or shall be deemed to be a novation of this Note or as a reinstatement of the debt evidenced hereby or a waiver of such right of acceleration or any other right, or be construed so as to preclude the exercise of any right which Lender may have, whether by the laws of the State of California, by agreement or otherwise, and Borrower and each endorser or guarantor hereby expressly waives the benefit of any statute or rule of law or equity which would produce a result contrary to or in conflict with the foregoing. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom such agreement is sought to be enforced.
Borrower and each endorser or guarantor of this Note hereby waives presentment, protest, demand, and diligence, notice of dishonor and notice of nonpayment.
All agreements between Borrower and Lender, whether now existing or hereafter arising, and whether oral or written, are hereby expressly limited so that in no contingency or event whatsoever, whether by acceleration of maturity hereof or otherwise, shall the amount paid or agreed to be paid to Lender of the holder hereof, or collected by Lender or such holder for the use, forbearance or detention of the money to be loaned hereunder or otherwise, or for the payment or performance of any covenant or obligation contained herein, or in any other document pertaining to the indebtedness evidenced hereby, exceed the maximum amount permissible under governing usury laws as applicable in this transaction, If, under any circumstances whatsoever, fulfillment of any provision hereof or of the Loan Documents or any other documents, at the time performance of such provision shall be due, shall involve exceeding the limit of validity prescribed by law for this transaction, then the obligation to be fulfilled shall be reduced to the limit of such validity; and if under any circumstances Lender or other holder hereof shall ever receive an amount deemed interest by applicable law, which would exceed the highest lawful rate allowed for this transaction, such amount that would be excessive interest under governing laws as applicable to this transaction shall be applied to the reduction of the principal amount owing hereunder and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal and such other indebtedness, the excess shall be deemed to have been a payment made by mistake and shall be refunded to Borrower or to any other person making such payment on Borrower's behalf. All sums paid or agreed to be paid to the holder hereto for the use, forbearance or detention of the indebtedness of Borrower evidenced hereby, outstanding from time to time shall, to the extent permitted by governing law, and to the extent necessary to preclude exceeding the limit of validity prescribed by law as applicable to this transaction, shall be amortized, pro-rated, allocated and spread from the date of disbursement of the proceeds of this Note until payment in full of the loan evidenced hereby so that the actual rate of interest on account of such indebtedness is uniform throughout the term hereof. The terms and provisions of this paragraph shall control and supersede every other provision of all agreements between Borrower, and endorser or guarantor and Lender.
This Note shall be governed by and construed under the laws of the State of California applicable to contracts made and to be performed entirely in that State without regard to the
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PROMISSORY NOTE |
Page 6 of 8 |
principles thereof regarding conflict of laws. Borrower and each endorser or guarantor hereby submits to personal jurisdiction in said State for the enforcement of Borrower's obligations hereunder, and waives any and all personal rights under the law of the other state to object to jurisdiction within such State for the purposes of litigation to enforce such obligations of Borrower. In the event such litigation is commenced, Borrower agrees that service of process may be made and personal jurisdiction over Borrower obtained, by service of a copy of the summons, complaint and other pleadings required to commence such litigation upon Borrower's appointed agent for service of process in such state with a copy to:
Ingrid Safranek (isafranek@mmrmail.com)
MMRGlobal, Inc.
MyMedicalRecords, Inc.
4401 Wilshire Blvd., Suite 200
Los Angeles, CA 90010
The holder of this note shall be entitled, without limitation, to all of the rights and remedies of the Lender under the Loan Agreements with respect to this Note. In the event of any conflict between the terms and conditions of the Security Agreement and those of this Note, the terms and conditions of this Note shall control. The obligations of Borrower pursuant to this Note are secured by the Security Agreement.
Borrower represents that it has obtained all of the corporate authority necessary to execute this Note.
[SIGNATURE PAGE FOLLOWS]
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PROMISSORY NOTE |
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IN WITNESS WHEREOF, Borrower has executed this instrument by its duly authorized signatories as of the date first above written.
"Borrower"
MyMedicalRecords, Inc., a Delaware corporation ("Subsidiary")
Name: Ingrid Safranek
Title: CFO
Signature: ______________________________
Date: July 10, 2014
MMRGlobal, Inc., a Delaware corporation ("Parent")
Name: Ingrid Safranek
Title: CFO
Signature: ______________________________
Date: July 10, 2014
The RHL Group, Inc. ("Lender")
Name: Robert H. Lorsch
Title: CEO
Signature: ______________________________
Date: July 10, 2014
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PROMISSORY NOTE |
Page 8 of 8 |
Exhibit 99.5
Exhibit 99.6
TENTH AMENDED AND RESTATED SECURED PROMISSORY NOTE
(For Revolving Line of Credit, Advances and Guaranteed Obligations)
|
(Up to) $4,500,000 |
May 20, 2015 |
Los Angeles, California |
$1,514,641.92 (current balance under Revolving Line of Credit)
$1,764,641.92 (total Unpaid Balance)
For Value Received, the undersigned MyMedicalRecords, Inc. (formerly mymedicalrecords.com, Inc.), a Delaware corporation ("Subsidiary") and MMRGlobal, Inc. (formerly MMR Information Systems, Inc., formerly Favrille, Inc.), a Delaware corporation ("Parent") (together, "Borrower"), promises to pay to the order of The RHL Group, Inc., a California corporation ("Lender"), the sum of up to Four Million Five Hundred Thousand Dollars ($4,500,000) on a revolving basis (sometimes referred to as a "Reserve Line of Credit" herein) 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, as amended on June 30, 2012 under the First Amended Security Agreement, and as amended on May 20, 2015 under the Second Amended Security Agreement (together, the "Security Agreement"), which grants certain security interests in the Collateral owned by Borrower, as therein defined. Borrower and Lender agree that the terms of this Tenth Amended and Restated Secured Promissory Note ("Tenth Amended Note") apply to the Reserve Line of Credit.
This Tenth 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 Restated Secured Promissory Note (the "Second Amended Note") dated August 1, 2008, 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, which was further amended by the Third Amended and Restated Secured Promissory Note dated April 29, 2009 (the "Third Amended Note"), which was further amended by the Fourth Amended and Restated Secured Promissory Note dated April 29, 2010 (the "Fourth Amended Note"), which was further amended by the Fifth Amended and Restated Secured Promissory Note dated April 29, 2011 (the "Fifth Amended Note") and further amended by the Sixth Amended and Restated Secured Promissory Note dated April 29, 2012 (the "Sixth Amended Note"), which was further amended by the Seventh Amended and Restated Secured Promissory Note (the "Seventh Amended Note") dated July 30, 2012, which was further amended by the Eighth Amended and Restated Secured Promissory Note (the "Eighth Amended Note") dated April 29, 2013 which was further amended by the Ninth Amended and Restated Secured Promissory Note (the "Ninth Amended Note") dated April 29, 2014, which is further amended by this Tenth Amended and Restated Secured Promissory Note (the "Tenth Amended Note") dated April 29, 2015. As stated therein, the Original Note, the First Amended Note, the Second
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Amended Note, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note the Sixth Amended Note, the Seventh Amended Note, the Eighth Amended Note, and the Ninth Amended Note provided for increases, if necessary, in the sole determination of the Lender, in the amount of the Reserve Line of Credit, and the terms of the Security Agreement which 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 Tenth Amended Note to the same extent, validity, security and priority as to advances under the Original Note, the First Amended Note, the Second Amended Note, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note, the Sixth Amended Note, the Seventh Amended Note, the Eighth Amended Note, and the Ninth Amended Note, with the exception that the Seventh Amended Note, the Eighth Amended Note, the Ninth Amended Note, and this Tenth Amended Note and the Security Agreement, are deemed to apply to the Parent as well as to the Subsidiary.
The original of the First Amended Note, Second Amended Note, Third Amended Note, , Fourth Amended Note, Fifth Amended Note, Sixth Amended Note, Seventh Amended Note, Eighth Amended Note, and Ninth Amended Note, have been marked as "superseded." If, and only if, the Tenth Amended Note is deemed unenforceable, or if the Security Agreement is, for any reason, deemed not to apply to the Tenth Amended Note, then the terms of the Ninth Amended Note, (or the Eighth Amended Note, or the Seventh Amended Note, or the Sixth Amended Note, or the Fifth Amended Note, or the Fourth Amended Note, or the Third Amended Note, or the Second Amended Note, or the Original Note, and the Guaranty previously signed by the Parent, 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.
The term "Unpaid Balance" shall mean all of the following: (a) the funds actually lent to the Borrower, or either the Parent or the Subsidiary, including interest, fees, and costs thereon (which includes reasonable legal expenses and costs of Lender in connection with this Tenth 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 personal guarantees by Robert H. Lorsch as approved by the Board of Directors); and (d) unpaid consulting fees to the Lender, salary to Robert H. Lorsch, or expenses accrued or owed to Lender. However, any amounts guaranteed by the Lender shall not be included in the balance under the Revolving Line of Credit, but shall reduce the balance available under the Reserve Line of Credit.
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, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note, the Sixth Amended, the Seventh Amended Note, the Eighth Amended Note, the Ninth Amended Note, or the Tenth Amended Note or the Security Agreement, as amended from time to time, the Reserve Line of Credit shall continue in existence for the next succeeding month, and payment of the full Unpaid Balance shall be similarly
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deferred. However, notwithstanding any other provision in this Note: (a) the obligation to pay interest on a monthly basis, and the obligation to pay the Credit Card Advances, if any, 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, May 20, 2016 (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 and any amounts due under any still then outstanding guarantees of Lender at the option of Lender. Notwithstanding anything to the contrary in this Note, or any of the predecessor notes that have been marked as "superseded," the Borrower shall pay at least $1,000 per month, starting on May 1, 2015 to the Lender or holder of this Note.
Upon the occurrence of an Event of Default, as defined in this Note or the Security Agreement, the Final Maturity Date shall be accelerated as against the Parent, the Subsidiary, or both, 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 State 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 $1,764,641.92 as of May 20, 2015, that the amount under the revolving line is $1,514,641.92 (not including guarantees as per the last sentence under the "Unpaid Balance" paragraph above), 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.
Lender will receive, concurrently with the execution of this Tenth Amended Note, 1,764,642warrants to acquire shares of Parent's common stock at an exercise price of $0.003 per share which represents one warrant per dollar outstanding on the Unpaid Balance of the Note as of the renewal date. Such warrants shall be fully vested and be exercisable in cash or in a cashless exercise at any time prior to their fifth anniversary of issuance, and which shall be non-transferable without the consent of Parent, which consent is not to be unreasonably withheld.
All payments on this Note are payable at, and all writings respecting the warrants shall be sent to, Lender's accountant at the following address, with a copy to Borrower: Anderson Financial, 12021 Wilshire Blvd., Suite 866, Los Angeles, California 90025, Attn: Marilyn Anderson, and The RHL Group, P.O. Box 17034, Beverly Hills, CA 90210, or at such other place as the Lender or any other holder hereof shall notify Borrower in writing.
All payments received by the Lender on this Note may be applied by Lender as follows: first, to the payment of all fees and expenses owed under this Note or the Security Agreement; second, to the payment of accrued and unpaid interest then due and owing; and third, to principal or as otherwise indicated by Lender.
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This Note may be prepaid in whole or in part, without penalty. In the event of partial prepayments, the prepayments and proceeds shall be applied as described in the just preceding paragraph.
At any time or times on or after the date hereof (or, to avoid the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, regarding "short swing profits," six months and one day from the date of the Lender's last purchase or sale of equity securities of the Parent), the Lender shall be entitled to convert up to Five Hundred Thousand Dollars ($500,000.00) of the outstanding and unpaid Conversion Amount (as defined below) into fully paid and non-assessable shares of the Parent's Common Stock (the "Common Stock") at the Conversion Rate (as defined below). The Parent shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Parent shall round such fraction of a share of Common Stock down to the nearest whole share and the difference shall remain outstanding as Unpaid Balance under this Note until paid in accordance herewith. To convert any Conversion Amount into shares of Common Stock on any date (a "Conversion Date"), the holder shall deliver to the Parent a written notice of conversion so requesting at least five (5) days prior to the requested Conversion Date (a "Conversion Request"). Such Conversion Amount shall convert (a "Conversion Event") into fully paid and non-assessable shares of Common Stock at the Conversion Rate in the manner specified in below.
The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to the foregoing paragraph shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price (as defined below) (the "Conversion Rate").
As used herein, the term "Conversion Amount" means the sum of (A) the portion of the Principal to be converted with respect to which this determination is being made, which shall not exceed $500,000 in the aggregate, and (B) accrued and unpaid Interest with respect to such Principal, and the term "Conversion Price" shall be equal to $0.01 per share of Common Stock.
On or before a Conversion Event, the Lender shall surrender this Note (or an indemnification undertaking with respect to this Note in the case of its loss, theft or destruction), duly endorsed, at the Parent's principal corporate office, and provide in writing the name or names in which the certificate or certificates for shares of Common Stock are to be issued. The Parent shall, at its expense and as soon as practicable, thereafter issue and deliver, or cause its transfer agent to issue and deliver, to the Lender, or to the nominee or nominees of the Lender, a certificate or certificates for the number of shares of Common Stock to which the Lender shall be entitled. The person or persons entitled to receive the shares of Common Stock issuable upon a Conversion Event shall be treated for all purposes as the record holder or holders of such shares as of the Conversion Date. If this Note is physically surrendered for conversion and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being converted, then the Parent shall as soon as practicable and in no event later than five trading days after receipt of this Note, and at its own expense, issue and deliver to the Lender, a new Note representing the outstanding Principal not converted.
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Notwithstanding anything else in this Agreement, the entire Unpaid Balance shall be due and owing, without extension on the occurrence of any of the following, unless otherwise agreed by Lender in writing: (a) a change in ownership or control of Borrower in an amount equal to or greater than one-third (1/3) of outstanding voting stock, other than transactions on a publicly traded market in the regular course of trading; (b) a transfer of at least one-third (1/3) of the assets of Borrower; (c) a change in the composition of Borrower's Board of Directors, Officers and/or senior management which is not approved by Lender; (d) Parent or Subsidiary shall first be the subject of a case pending in any United States Bankruptcy Court; (e) Parent or Subsidiary shall suffer the appointment of a receiver appointed in any state or federal court action, or other proceeding; (f) Parent or Subsidiary shall be the subject of any writ of attachment or writ of execution; (g) Parent or Subsidiary shall not be in full compliance with all of its covenants in prior agreements by May 15, 2016; (h) Parent and Subsidiary shall fall out of compliance with its covenants on or after May 15, 2015; (i) Borrower shall have less than $200,000 in cash in its bank accounts or such other amount as necessary to maintain operations, whichever is greater, through the subsequent thirty (30) days on and after May 20, 2015 or (j) Subsidiary and Parent shall not timely pay any obligations due respecting payroll and all associated payroll taxes at any time during the term of the Note. Notwithstanding the foregoing sentence, Lender hereby expressly waives, both now and in the future, any Default or Event of Default under this Note and the Security Agreement that arises from or is related to the Closing (as that term is defined in the Agreement and Plan of Merger and Reorganization dated November 8, 2008 by and among Borrower, Parent and a wholly-owned merger subsidiary of Parent (the "Merger Agreement") and the consummation of the transactions described in the Merger Agreement.
The Security Agreement, as amended from time to time, relating to the Original Note, the Amended Note, the Second Amended Note, the Third Amended Note, The Fourth Amended Note, the Fifth Amended Note, the Sixth Amended Note, the Seventh Amended Note, the Eighth Amended Note, the Ninth Amended Note and this Tenth Amended Note shall jointly be referred to as the "Loan Documents."
Upon the happening of any failure to make any payment under the Loan Documents, or any other "Event of Default" as defined in the Security Agreement, as amended from time to time, Lender may at its option declare the entire unpaid balance of this Note, together with interest accrued thereon, to be immediately due and payable. Upon receiving notice of Default, Borrower will have10 calendar days to cure such Event of Default. In the event the Borrower fails to cure the default, the Lender may proceed to exercise any rights or remedies that it may have under any of the Loan Documents or under this Note or such other rights and remedies which, subject to the provisions of this Note and Loan Documents, the Lender may have at law, equity or otherwise. In the event of such acceleration, Borrower may discharge its obligations to the Lender by paying the unpaid balance hereof as of the date of such payment, plus accrued interest and fees, in the manner set forth above.
Upon an Event of Default (as defined in the Security Agreement, as amended from time to time), the interest rate hereunder shall be computed as the higher of: (a) the highest rate then allowed by law, or (b) the rate described herein.
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After default, in addition to principal and accrued interest, the Lender shall be entitled to collect all costs of collection, including, but not limited to, reasonable attorneys' fees incurred in connection with any of the lender's reasonable collection efforts, whether or not suit on this Note is filed, and all such costs and expenses shall be payable on demand.
No failure on the part of the Lender or other holder hereof to exercise any right or remedy hereunder, whether before or after the happening of a default, shall constitute a waiver thereof, and no waiver of any past default shall constitute waiver of any future default or of any other default. No failure to accelerate the debt evidenced hereby by reason of default hereunder, or acceptance of a past due installment or indulgence granted from time to time shall be construed to be a waiver of the right to insist upon prompt payment thereafter, or shall be deemed to be a novation of this Note or as a reinstatement of the debt evidenced hereby or a waiver of such right of acceleration or any other right, or be construed so as to preclude the exercise of any right which Lender may have, whether by the laws of the State of California, by agreement or otherwise, and Borrower and each endorser or guarantor hereby expressly waives the benefit of any statute or rule of law or equity which would produce a result contrary to or in conflict with the foregoing. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom such agreement is sought to be enforced.
Borrower and each endorser or guarantor of this Note hereby waives presentment, protest, demand, and diligence, notice of dishonor and notice of nonpayment.
All agreements between Borrower and Lender, whether now existing or hereafter arising, and whether oral or written, are hereby expressly limited so that in no contingency or event whatsoever, whether by acceleration of maturity hereof or otherwise, shall the amount paid or agreed to be paid to Lender or the holder hereof, or collected by Lender or such holder for the use, forbearance or detention of the money to be loaned hereunder or otherwise, or for the payment or performance of any covenant or obligation contained herein, or in any other document pertaining to the indebtedness evidenced hereby, exceed the maximum amount permissible under governing usury laws as applicable in this transaction, If, under any circumstances whatsoever, fulfillment of any provision hereof or of the Loan Documents or any other documents, at the time performance of such provision shall be due, shall involve exceeding the limit of validity prescribed by law for this transaction, then the obligation to be fulfilled shall be reduced to the limit of such validity; and if under any circumstances Lender or other holder hereof shall ever receive an amount deemed interest by applicable law, which would exceed the highest lawful rate allowed for this transaction, such amount that would be excessive interest under governing laws as applicable to this transaction shall be applied to the reduction of the principal amount owing hereunder and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal and such other indebtedness, the excess shall be deemed to have been a payment made by mistake and shall be refunded to Borrower or to any other person making such payment on Borrower's behalf. All sums paid or agreed to be paid to the Lender hereto for the use, forbearance or detention of the indebtedness of Borrower evidenced hereby, outstanding from time to time shall, to the extent permitted by governing law, and to the extent necessary to preclude exceeding the limit of validity prescribed by law as applicable to this transaction, shall be amortized, pro-rated, allocated and spread from the date of disbursement of the proceeds of this Note until payment in full of the loan evidenced hereby so that the actual rate of interest on account of such indebtedness is uniform throughout the term hereof. The terms and provisions of this paragraph shall control and supersede every other provision of all agreements between Borrower, and endorser or guarantor and Lender.
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This Note shall be governed by and construed under the laws of the State of California applicable to contracts made and to be performed entirely in that State without regard to the principles thereof regarding conflict of laws. Borrower and each endorser or guarantor hereby submits to personal jurisdiction in said State for the enforcement of Borrower's obligations hereunder, and waives any and all personal rights under the law of the other state to object to jurisdiction within such State for the purposes of litigation to enforce such obligations of Borrower. In the event such litigation is commenced, Borrower agrees that service of process may be made and personal jurisdiction over Borrower obtained, by service of a copy of the summons, complaint and other pleadings required to commence such litigation upon Borrower's appointed agent for service of process in such state with a copy to:
Ingrid Safranek (isafranek@mmrmail.com)
MMRGlobal, Inc.
MyMedicalRecords, Inc.
4401 Wilshire Blvd., Suite 200
Los Angeles, CA 90010
The holder of this note shall be entitled, without limitation, to all of the rights and remedies of the Lender under the Loan Agreements with respect to this Note. In the event of any conflict between the terms and conditions of the Security Agreement and those of this Note, the terms and conditions of this Note shall control. The obligations of Borrower pursuant to this Note are secured by the Security Agreement.
Borrower represents that it has obtained all of the corporate authority necessary to execute this Note.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Borrower has executed this instrument by its duly authorized signatories as of the date first above written.
"Borrower"
MyMedicalRecords, Inc., a Delaware corporation ("Subsidiary")
Name: Ingrid Safranek
Title: CFO
Signature: ___________________________________
Date: ____________
MMRGlobal, Inc., a Delaware corporation ("Parent")
Name: Ingrid Safranek
Title: CFO
Signature: ___________________________________
Date: _____________
The RHL Group, Inc. ("Lender")
Name: Robert H. Lorsch
Title: CEO
Signature: ___________________________________
Date: _____________
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Exhibit 99.7
Exhibit 99.8
[Execution Copy]
ELEVENTH AMENDED AND RESTATED SECURED PROMISSORY NOTE
(For Revolving Line of Credit, Advances and Guaranteed Obligations)
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(Up to) $4,500,000 |
June 6, 2016 |
Los Angeles, California |
$2,527,714.26 (current balance under Revolving Line of Credit)
$2,777,714.26 (total Unpaid Balance)
For Value Received, the undersigned MyMedicalRecords, Inc. (formerly mymedicalrecords.com, Inc.), a Delaware corporation ("Subsidiary") and MMRGlobal, Inc. (formerly MMR Information Systems, Inc., formerly Favrille, Inc.), a Delaware corporation ("Parent") (together, "Borrower"), promises to pay to the order of The RHL Group, Inc., a California corporation ("Lender"), the sum of up to Four Million Five Hundred Thousand Dollars ($4,500,000) on a revolving basis (sometimes referred to as a "Reserve Line of Credit" herein) 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, as amended on June 30, 2012 under the First Amended Security Agreement, and as amended on July 23rd, 2015 under the Second Amended Security Agreement (together, the "Security Agreement"), which grants certain security interests in the Collateral owned by Borrower, as therein defined. Borrower and Lender agree that the terms of this Eleventh Amended and Restated Secured Promissory Note ("Tenth Amended Note") apply to the Reserve Line of Credit.
This Tenth 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 Restated 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, which was further amended by the Third Amended and Restated Secured Promissory Note dated April 29, 2009 (the "Third Amended Note"), which was further amended by the Fourth Amended and Restated Secured Promissory Note dated April 29, 2010 (the "Fourth Amended Note"), which was further amended by the Fifth Amended and Restated Secured Promissory Note dated April 29, 2011 (the "Fifth Amended Note") and further amended by the Sixth Amended and Restated Secured Promissory Note dated April 29, 2012 (the "Sixth Amended Note"), which was further amended by the Seventh Amended and Restated Secured Promissory Note (the "Seventh Amended Note") dated July 30, 2012, which was further amended by the Eighth Amended and Restated Secured Promissory Note (the "Eighth Amended Note") dated April 29, 2013 which was further amended by the Ninth Amended and Restated Secured Promissory Note (the "Ninth
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Amended Note") dated April 29, 2014, which was further amended by this Tenth Amended and Restated Secured Promissory Note (the "Tenth Amended Note") dated May 20, 2015 which is further amended by this Eleventh Amended and Restated Secured Promissory Note (the "Eleventh Amended Note") dated June 6, 2016. As stated therein, the Original Note, the First Amended Note, the Second Amended Note, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note the Sixth Amended Note, the Seventh Amended Note, the Eighth Amended Note, the Ninth Amended Note and the Tenth Amended Note provided for increases, if necessary, in the sole determination of the Lender, in the amount of the Reserve Line of Credit, and the terms of the Security Agreement which 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 Tenth Amended Note to the same extent, validity, security and priority as to advances under the Original Note, the First Amended Note, the Second Amended Note, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note, the Sixth Amended Note, the Seventh Amended Note, the Eighth Amended Note, and the Ninth Amended Note, with the exception that the Seventh Amended Note, the Eighth Amended Note, the Ninth Amended Note, the Tenth Amended Note and this Eleventh Amended Note and the Security Agreement, are deemed to apply to the Parent as well as to the Subsidiary.
The original of the First Amended Note, Second Amended Note, Third Amended Note, including the Allonge, Fourth Amended Note, Fifth Amended Note, Sixth Amended Note, Seventh Amended Note, Eighth Amended Note, and Ninth Amended Note, and Tenth amended Note have been marked as "superseded." If, and only if, the Eleventh Amended Note is deemed unenforceable, or if the Security Agreement is, for any reason, deemed not to apply to the Eleventh Amended Note, then the terms of the Tenth Amended Note, (or the Ninth Amended Note, or the Eighth Amended Note, or the Seventh Amended Note, or the Sixth Amended Note, or the Fifth Amended Note, or the Fourth Amended Note, or the Third Amended Note, or the Second Amended Note, or the Original Note, and the Guaranty(s) previously signed by the Parent, 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.
The term "Unpaid Balance" shall mean all of the following: (a) the funds actually lent to the Borrower, or either the Parent or the Subsidiary, including interest, fees, and costs thereon (which includes reasonable legal expenses and costs of Lender in connection with this Tenth 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 personal guarantees by Robert H. Lorsch as approved by the Board of Directors); and (d) unpaid consulting fees to the Lender, salary to Robert H. Lorsch, or expenses accrued or owed to Lender. However, any amounts guaranteed by the Lender and unpaid (if any) shall not be included in the balance under the Revolving Line of Credit, but shall reduce the balance available under the Reserve Line of Credit.
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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, the Third Amended Note, the Fourth Amended Note, the Fifth Amended Note, the Sixth Amended, the Seventh Amended Note, the Eighth Amended Note, the Ninth Amended Note, the Tenth Amended Note or the Eleventh Amended Note or the Security Agreement, as amended from time to time, 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: (a) the obligation to pay interest on a monthly basis, and the obligation to pay the Credit Card Advances, if any, 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, June 6th, 2017 (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 and any amounts due under any still then outstanding guarantees of Lender at the option of Lender. Notwithstanding anything to the contrary in this Note, or any of the predecessor notes that have been marked as "superseded," the Borrower shall pay at least $1,000 per month, starting on July 1, 2016 to the Lender or holder of this Note.
Upon the occurrence of an Event of Default, as defined in this Note or the Security Agreement, the Final Maturity Date shall be accelerated as against the Parent, the Subsidiary, or both, 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 State 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 $ 2,527,714.26 as of June 6th 2016, that the amount under the revolving line is $ 2,777,714.26 (not including guarantees as per the last sentence under the "Unpaid Balance" paragraph above), 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.
Lender will receive, concurrently with the execution of this Eleventh Amended Note, 2,777,714 warrants to acquire shares of Parent's common stock at an exercise price of $0.011 per share which represents one warrant per dollar outstanding on the Unpaid Balance of the Note as of the renewal date. Such warrants shall be fully vested and be exercisable in cash or in a cashless exercise at any time prior to their fifth anniversary of issuance, and which shall be non-transferable without the consent of Parent, which consent is not to be unreasonably withheld.
All payments on this Note are payable at, and all writings respecting the warrants shall be sent to The RHL Group, P.O. Box 17034, Beverly Hills, CA 90210, or at such other place as the Lender or any other holder hereof shall notify Borrower in writing.
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All payments received by the Lender on this Note may be applied by Lender as follows: first, to the payment of all fees and expenses owed under this Note or the Security Agreement; second, to the payment of accrued and unpaid interest then due and owing; and third, to principal or as otherwise indicated by Lender.
This Note may be prepaid in whole or in part, without penalty. In the event of partial prepayments, the prepayments and proceeds shall be applied as described in the just preceding paragraph.
At any time or times on or after the date hereof (or, to avoid the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, regarding "short swing profits," six months and one day from the date of the Lender's last purchase or sale of equity securities of the Parent), the Lender shall be entitled to convert up to Five Hundred Thousand Dollars ($500,000.00) of the outstanding and unpaid Conversion Amount (as defined below) into fully paid and non-assessable shares of the Parent's Common Stock (the "Common Stock") at the Conversion Rate (as defined below). The Parent shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Parent shall round such fraction of a share of Common Stock down to the nearest whole share and the difference shall remain outstanding as Unpaid Balance under this Note until paid in accordance herewith. To convert any Conversion Amount into shares of Common Stock on any date (a "Conversion Date"), the holder shall deliver to the Parent a written notice of conversion so requesting at least five (5) days prior to the requested Conversion Date (a "Conversion Request"). Such Conversion Amount shall convert (a "Conversion Event") into fully paid and non-assessable shares of Common Stock at the Conversion Rate in the manner specified in below.
The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to the foregoing paragraph shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price (as defined below) (the "Conversion Rate").
As used herein, the term "Conversion Amount" means the sum of (A) the portion of the Principal to be converted with respect to which this determination is being made, which shall not exceed $500,000 in the aggregate, and (B) accrued and unpaid Interest with respect to such Principal, and the term "Conversion Price" shall be equal to $0.012 per share of Common Stock.
On or before a Conversion Event, the Lender shall surrender this Note (or an indemnification undertaking with respect to this Note in the case of its loss, theft or destruction), duly endorsed, at the Parent's principal corporate office, and provide in writing the name or names in which the certificate or certificates for shares of Common Stock are to be issued. The Parent shall, at its expense and as soon as practicable, thereafter issue and deliver, or cause its transfer agent to issue and deliver, to the Lender, or to the nominee or nominees of the Lender, a certificate or certificates for the number of shares of Common Stock to which the Lender shall be entitled. The person or persons entitled to receive the shares of Common Stock issuable upon a Conversion Event shall be treated for all purposes as the record holder or holders of such shares as of the Conversion Date. If this Note is physically
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surrendered for conversion and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being converted, then the Parent shall as soon as practicable and in no event later than five trading days after receipt of this Note, and at its own expense, issue and deliver to the Lender, a new Note representing the outstanding Principal not converted.
Notwithstanding anything else in this Agreement, the entire Unpaid Balance shall be due and owing, without extension on the occurrence of any of the following, unless otherwise agreed by Lender in writing: (a) a change in ownership or control of Borrower in an amount equal to or greater than one-third (1/3) of outstanding voting stock, other than transactions on a publicly traded market in the regular course of trading; (b) a transfer of at least one-third (1/3) of the assets of Borrower; (c) a change in the composition of Borrower's Board of Directors, Officers and/or senior management which is not approved by Lender; (d) Parent or Subsidiary shall first be the subject of a case pending in any United States Bankruptcy Court; (e) Parent or Subsidiary shall suffer the appointment of a receiver appointed in any state or federal court action, or other proceeding; (f) Parent or Subsidiary shall be the subject of any writ of attachment or writ of execution; (g) Parent or Subsidiary shall not be in full compliance with all of its covenants in prior agreements by June 6th 2016; (h) Parent and Subsidiary shall fall out of compliance with its covenants on or after June 6th 2016; (i) Borrower shall have less than $200,000 in cash in its bank accounts or such other amount as necessary to maintain operations, whichever is greater, through the subsequent thirty (30) days on and after June 6, 2016; or (j) Subsidiary and Parent shall not timely pay any obligations due respecting payroll and all associated payroll taxes at any time during the term of the Note.
The Security Agreement, as amended from time to time, relating to the Original Note, the Amended Note, the Second Amended Note, the Third Amended Note, The Fourth Amended Note, the Fifth Amended Note, the Sixth Amended Note, the Seventh Amended Note, the Eighth Amended Note, the Ninth Amended Note the Tenth Amended Note and this Eleventh Amended Note shall jointly be referred to as the "Loan Documents."
Upon the happening of any failure to make any payment under the Loan Documents, or any other "Event of Default" as defined in the Security Agreement, as amended from time to time, Lender may at its option declare the entire unpaid balance of this Note, together with interest accrued thereon, to be immediately due and payable. Upon receiving notice of Default, Borrower will have10 calendar days to cure such Event of Default. In the event the Borrower fails to cure the default, the Lender may proceed to exercise any rights or remedies that it may have under any of the Loan Documents or under this Note or such other rights and remedies which, subject to the provisions of this Note and Loan Documents, the Lender may have at law, equity or otherwise. In the event of such acceleration, Borrower may discharge its obligations to the Lender by paying the unpaid balance hereof as of the date of such payment, plus accrued interest and fees, in the manner set forth above.
Upon an Event of Default (as defined in the Security Agreement, as amended from time to time), the interest rate hereunder shall be computed as the higher of: (a) the highest rate then allowed by law, or (b) the rate described herein.
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After default, in addition to principal and accrued interest, the Lender shall be entitled to collect all costs of collection, including, but not limited to, reasonable attorneys' fees incurred in connection with any of the lender's reasonable collection efforts, whether or not suit on this Note is filed, and all such costs and expenses shall be payable on demand.
No failure on the part of the Lender or other holder hereof to exercise any right or remedy hereunder, whether before or after the happening of a default, shall constitute a waiver thereof, and no waiver of any past default shall constitute waiver of any future default or of any other default. No failure to accelerate the debt evidenced hereby by reason of default hereunder, or acceptance of a past due installment or indulgence granted from time to time shall be construed to be a waiver of the right to insist upon prompt payment thereafter, or shall be deemed to be a novation of this Note or as a reinstatement of the debt evidenced hereby or a waiver of such right of acceleration or any other right, or be construed so as to preclude the exercise of any right which Lender may have, whether by the laws of the State of California, by agreement or otherwise, and Borrower and each endorser or guarantor hereby expressly waives the benefit of any statute or rule of law or equity which would produce a result contrary to or in conflict with the foregoing. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom such agreement is sought to be enforced.
Borrower and each endorser or guarantor of this Note hereby waives presentment, protest, demand, and diligence, notice of dishonor and notice of nonpayment.
All agreements between Borrower and Lender, whether now existing or hereafter arising, and whether oral or written, are hereby expressly limited so that in no contingency or event whatsoever, whether by acceleration of maturity hereof or otherwise, shall the amount paid or agreed to be paid to Lender or the holder hereof, or collected by Lender or such holder for the use, forbearance or detention of the money to be loaned hereunder or otherwise, or for the payment or performance of any covenant or obligation contained herein, or in any other document pertaining to the indebtedness evidenced hereby, exceed the maximum amount permissible under governing usury laws as applicable in this transaction, If, under any circumstances whatsoever, fulfillment of any provision hereof or of the Loan Documents or any other documents, at the time performance of such provision shall be due, shall involve exceeding the limit of validity prescribed by law for this transaction, then the obligation to be fulfilled shall be reduced to the limit of such validity; and if under any circumstances Lender or other holder hereof shall ever receive an amount deemed interest by applicable law, which would exceed the highest lawful rate allowed for this transaction, such amount that would be excessive interest under governing laws as applicable to this transaction shall be applied to the reduction of the principal amount owing hereunder and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal and such other indebtedness, the excess shall be deemed to have been a payment made by mistake and shall be refunded to Borrower or to any other person making such payment on Borrower's behalf. All sums paid or agreed to be paid to the Lender hereto for the use, forbearance or detention of the indebtedness of Borrower evidenced hereby, outstanding from time to time shall, to the extent permitted by governing law, and to the extent necessary to preclude exceeding the limit of validity prescribed by law as applicable to this transaction, shall be amortized, pro-rated, allocated and spread from the date of disbursement of the proceeds of this Note until payment in full of the loan evidenced hereby so that the actual rate of interest on account of such indebtedness is uniform throughout the term hereof. The terms and provisions of this paragraph shall control and supersede every other provision of all agreements between Borrower, and endorser or guarantor and Lender.
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This Note shall be governed by and construed under the laws of the State of California applicable to contracts made and to be performed entirely in that State without regard to the principles thereof regarding conflict of laws. Borrower and each endorser or guarantor hereby submits to personal jurisdiction in said State for the enforcement of Borrower's obligations hereunder, and waives any and all personal rights under the law of the other state to object to jurisdiction within such State for the purposes of litigation to enforce such obligations of Borrower. In the event such litigation is commenced, Borrower agrees that service of process may be made and personal jurisdiction over Borrower obtained, by service of a copy of the summons, complaint and other pleadings required to commence such litigation upon Borrower's appointed agent for service of process in such state with a copy to:
Robert Yaspan
Yaspan Law
21700 Oxnard St., Suite 1750
Woodland Hills, Ca. 91367
The holder of this note shall be entitled, without limitation, to all of the rights and remedies of the Lender under the Loan Agreements with respect to this Note. In the event of any conflict between the terms and conditions of the Security Agreement and those of this Note, the terms and conditions of this Note shall control. The obligations of Borrower pursuant to this Note are secured by the Security Agreement.
Borrower represents that it has obtained all of the corporate authority necessary to execute this Note.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Borrower has executed this instrument by its duly authorized signatories as of the date first above written.
"Borrower"
MyMedicalRecords, Inc., a Delaware corporation ("Subsidiary")
Name: Scott Kline
Title: Secretary & General Counsel
Signature: ___________________________________
Date: ____________
MMRGlobal, Inc., a Delaware corporation ("Parent")
Name: Scott Kline
Title: Secretary & General Counsel
Signature: ___________________________________
Date: ____________
The RHL Group, Inc. ("Lender")
Name: Robert H. Lorsch
Title: CEO
Signature: ___________________________________
Date: ____________
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