Contract
EXHIBIT
99.1
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR
ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO
THIS
NOTE UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION
OF
COUNSEL REASONABLY SATISFACTORY TO SPACEDEV, INC. THAT SUCH REGISTRATION IS
NOT
REQUIRED.
FOR
VALUE
RECEIVED, each of SPACEDEV, INC., a Colorado corporation (the “Parent”),
and
the other companies listed on Exhibit
A
attached
hereto (such other companies together with the Parent, each a “Company”
and
collectively, the “Companies”),
jointly and severally, promises to pay to LAURUS MASTER FUND, LTD., c/o M&C
Corporate Services Limited, X.X. Xxx 000 XX, Xxxxxx House, South Church Street,
Xxxxxx Town, Grand Cayman, Cayman Islands, Fax: 000-000-0000 (the “Holder”)
or its
registered assigns or successors in interest, the sum of Five Million Dollars
($5,000,000), or, if different, the aggregate principal amount of all Loans
(as
defined in the Security Agreement referred to below) (the “Principal
Amount”),
together with any accrued and unpaid interest hereon, on September 29, 2009
(the
“Maturity
Date”)
if not
sooner indefeasibly paid in full.
Capitalized
terms used herein without definition shall have the meanings ascribed to such
terms in the Security Agreement among the Companies and the Holder dated as
of
the date hereof (as amended, modified and/or supplemented from time to time,
the
“Security
Agreement”).
The
following terms shall apply to this Secured Revolving Note (this “Note”):
ARTICLE
I
CONTRACT
RATE
1.1 Contract
Rate.
Subject
to Sections 2.2 and 3.9, interest payable on the outstanding Principal Amount
of
this Note shall accrue at a rate per annum equal to the “prime rate” published
in The
Wall Street Journal
from
time to time (the “Prime
Rate”),
plus
two percent (2.0%) (the “Contract
Rate”).
The
Contract Rate shall be increased or decreased as the case may be for each
increase or decrease in the Prime Rate in an amount equal to such increase
or
decrease in the Prime Rate; each change to be effective as of the day of the
change in the Prime Rate. Interest shall be (i) calculated on the basis of
a 360
day year, and (ii) payable monthly, in arrears, commencing on October 1, 2006
on
the first business day of each consecutive calendar month thereafter through
and
including the Maturity Date, and on the Maturity Date, whether by acceleration
or otherwise.
1.2 Contract
Rate Payments.
The
Contract Rate shall be calculated on the last business day of each calendar
month hereafter (other than for increases or decreases in the Prime Rate which
shall be calculated and become effective in accordance with the terms of Section
1.1) until the Maturity Date and shall be subject to adjustment as set forth
herein.
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ARTICLE
II
EVENTS
OF DEFAULT AND DEFAULT RELATED PROVISIONS
2.1 Events
of Default.
The
occurrence of an Event of Default under the Security Agreement shall constitute
an event of default (“Event
of Default”)
hereunder.
2.2 Default
Interest.
Following the occurrence and during the continuance of an Event of Default,
the
Companies shall, jointly and severally, pay additional interest on the
outstanding principal balance of this Note in an amount equal to one percent
(1.0%) per month, and all outstanding Obligations, including unpaid interest,
shall continue to accrue interest at such additional interest rate from the
date
of such Event of Default until the date such Event of Default is cured or
waived.
2.3 Default
Payment.
Following the occurrence and during the continuance of an Event of Default,
the
Holder, at its option, may elect, in addition to all rights and remedies of
the
Holder under the Security Agreement and the other Ancillary Agreements and
all
obligations and liabilities of each Company under the Security Agreement and
the
other Ancillary Agreements, to require the Companies, jointly and severally,
to
make a Default Payment (“Default
Payment”).
The
Default Payment shall be 110% of the outstanding principal amount of the Note,
plus accrued but unpaid interest, all other fees then remaining unpaid, and
all
other amounts payable hereunder, under the Security Agreement or any other
Ancillary Agreement. The Default Payment. The Default Payment shall be applied
first to any fees due and payable to the Holder pursuant to the Note, the
Security Agreement and/or the Ancillary Agreements, then to accrued and unpaid
interest due on the Note and then to the outstanding principal balance of the
Note. Subject to the last sentence of Section 17 of the Security Agreement,
the
Default Payment shall be due and payable immediately on the date that the Holder
has demanded
payment of the Default Payment pursuant
to this Section 2.3 and, when received, shall be regarded as payment in full
of
all amounts due under the Note.
ARTICLE
III
MISCELLANEOUS
3.1 Issuance
of New Note.
Upon
any partial redemption of this Note, a new Note containing the same date and
provisions of this Note shall, at the request of the Holder, be issued by the
Companies to the Holder for the principal balance of this Note and interest
which shall not have been paid. Subject to the provisions of Article II of
this
Note, the Companies shall not pay any costs, fees or any other consideration
to
the Holder for the production and issuance of a new Note.
3.2 Cumulative
Remedies.
The
remedies under this Note shall be cumulative.
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3.3 Failure
or Indulgence Not Waiver.
No
failure or delay on the part of the Holder hereof in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing hereunder are cumulative to, and not exclusive
of,
any rights or remedies otherwise available.
3.4 Notices.
Any
notice herein required or permitted to be given shall be in writing and shall
be
deemed effective given (a) upon personal delivery to the party notified, (b)
when sent by confirmed telex or facsimile if sent during normal business hours
of the recipient, if not, then on the next business day, (c) five days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification
of
receipt. All communications shall be sent to the respective Company at the
address provided for such Company in the Security Agreement executed in
connection herewith, and to the Holder at the address provided in the Security
Agreement for the Holder, with a copy to Laurus Capital Management, LLC, Attn:
Portfolio Services, 000 Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, facsimile number (000) 000-0000, or at such other
address as the respective Company or the Holder may designate by ten days
advance written notice to the other parties hereto.
3.5 Amendment
Provision.
The
term “Note” and all references thereto, as used throughout this instrument,
shall mean this instrument as originally executed, or if later amended or
supplemented, then as so amended or supplemented, and any successor instrument
as such successor instrument may be amended or supplemented. No modification
of
any of the terms or provisions of this Note shall be valid unless contained
in a
writing signed by the parties.
3.6 Assignability.
This
Note shall be binding upon each Company and its successors and assigns, and
shall inure to the benefit of the Holder and its successors and assigns, and
may
be assigned by the Holder in accordance with the requirements of the Security
Agreement. No Company may assign any of its obligations under this Note without
the prior written consent of the Holder, any such purported assignment without
such consent being null and void.
3.7 Cost
of Collection.
In case
of an occurrence of an Event of Default under this Note, the Companies shall,
jointly and severally, pay the Holder the Holder’s reasonable costs of
collection, including reasonable attorneys’ fees.
3.8 Governing
Law, Jurisdiction and Waiver of Jury Trial.
(a) THIS
NOTE
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW
OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF
LAW.
3
(b) EACH
COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN
THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION
TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY COMPANY, ON THE ONE HAND,
AND THE HOLDER, ON THE OTHER HAND, PERTAINING TO THIS NOTE, THE SECURITY
AGREEMENT OR ANY OF THE OTHER ANCILLARY AGREEMENTS OR TO ANY MATTER ARISING
OUT
OF OR RELATED TO THIS NOTE, THE SECURITY AGREEMENT OR ANY OF THE OTHER ANCILLARY
AGREEMENTS; PROVIDED,
THAT,
EACH
COMPANY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD
BY
A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND
FURTHER PROVIDED,
THAT,
NOTHING
IN THIS NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE
OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE
HOLDER. EACH COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH COMPANY
HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS.
EACH
COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL
ADDRESSED TO THE COMPANY AT THE ADDRESS SET FORTH IN THE SECURITY AGREEMENT
AND
THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF THE COMPANY’S
ACTUAL RECEIPT THEREOF OR TEN (10) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID
(c) EACH
COMPANY DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH COMPANY HERETO WAIVES ALL RIGHTS
TO
TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE HOLDER, AND/OR
ANY
COMPANY ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS NOTE, THE SECURITY
AGREEMENT, ANY OTHER ANCILLARY AGREEMENT OR THE TRANSACTIONS RELATED HERETO
OR
THERETO.
3.9 Severability.
In the
event that any provision of this Note is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such provision which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision of this Note.
3.10 Maximum
Payments.
Nothing
contained herein shall be deemed to establish or require the payment of a rate
of interest or other charges in excess of the maximum permitted by applicable
law. In the event that the rate of interest required to be paid or other charges
hereunder exceed the maximum rate permitted by such law, any payments in excess
of such maximum rate shall be credited against amounts owed by the Companies
to
the Holder and thus refunded to the Companies.
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3.11 Security
Interest .
The
Holder has been granted a security interest in certain assets of the Companies
as more fully described in the Security Agreement.
3.12 Construction.
Each
party acknowledges that its legal counsel participated in the preparation of
this Note and, therefore, stipulates that the rule of construction that
ambiguities are to be resolved against the drafting party shall not be applied
in the interpretation of this Note to favor any party against the
other.
3.13 Registered
Obligation.
This
Note is intended to be a registered obligation within the meaning of Treasury
Regulation Section 1.871-14(c)(1)(i) and the Companies (or their agents) shall
register this Note (and thereafter shall maintain such registration) as to
both
principal and any stated interest. Notwithstanding any document, instrument
or
agreement relating to this Note to the contrary, transfer of this Note (or
the
right to any payments of principal or stated interest thereunder) may only
be
effected by (i) surrender of this Note and either the reissuance by the
Companies of this Note to the new holder or the issuance by the Companies of
a
new instrument to the new holder, or (ii) transfer through a book entry system
maintained by the Companies (or their agents), within the meaning of Treasury
Regulation Section 1.871-14(c)(1)(i)(B).
[Balance
of page intentionally left blank; signature page follows]
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IN
WITNESS WHEREOF,
each
Company has caused this Secured Revolving Note to be signed in its name
effective as of this 29th day of September, 2006.
SPACEDEV,
INC.
By: /s/
Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X.
Xxxxxxx
Title:
Chief
Financial Officer
WITNESS:
/s/
Xxxxx XxXxxx-Xxxxxxxx
STARSYS,
INC.
By: /s/
Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X.
Xxxxxxx
Title:
Chief
Financial Officer
WITNESS:
/s/
Xxxxx XxXxxx-Xxxxxxxx
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EXHIBIT
A
OTHER
COMPANIES
Starsys,
Inc. a Colorado corporation
SpaceDev
Oklahoma, Inc. an Oklahoma corporation
Dream
Chaser, Inc., a Delaware corporation
