Exhibit 10.36
THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") NOR IS SUCH REGISTRATION
CONTEMPLATED. THIS NOTE MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED AT ANY TIME WHATSOEVER UNLESS REGISTERED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE, EXCEPT UPON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER
OR THE SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY
TO IT AND TO ITS COUNSEL TO THE EFFECT THAT ANY SUCH TRANSFER WILL NOT BE IN
VIOLATION OF THE ACT, OR APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR
REGULATION PROMULGATED THEREUNDER.
ANTIGUA GROUP, INC.
SENIOR SUBORDINATED SECURED NOTE
DUE MAY 7, 1998
$1,020,000 Irvine, California
May 7, 1997
FOR VALUE RECEIVED, the undersigned, ANTIGUA GROUP, INC., a Nevada
corporation (the "Company"), hereby promises to pay to THE CRUTTENDEN XXXX
BRIDGE FUND, LLC, a California limited liability company ("Payee") or registered
assigns ("Holder"), the principal sum of ONE MILLION TWENTY THOUSAND DOLLARS
($1,020,000) (or so much thereof as shall not have been prepaid) on earlier of
(i) May 7, 1998, or (ii) the effective date of a public offering of any of the
Company's securities to the general public or other financing the aggregate
proceeds of which (after deduction for underwriter's discounts and expenses
related to the issuance) exceed $3,000,000 (the "Maturity Date"), together with
interest (computed on the basis of a 360-day year of twelve 30-day months) on
the unpaid principal balance hereof at the rate of thirteen percent (13%) from
the date hereof, under the terms of the Securities Purchase Agreement dated as
of even date herewith (the "Agreement") between the Company and Payee, payable
monthly in advance, commencing June 1, 1997 (which first payment shall
additionally include accrued interest from the date hereof to and including such
date), until said principal shall have become due and payable in accordance with
the Agreement, and to pay interest at the foregoing rate per annum on any
overdue principal and, to the extent permitted by applicable law, on any
interest overdue (without regard to any applicable grace period), until the same
shall be paid.
Payments of principal, prepayment charges (if any) and interest are to
be made at the office of Holder at the address for notice set forth in the
Agreement or such other address of which Holder informs Company in writing, in
lawful money of the United States of America.
The indebtedness evidenced by this Note is secured by, and this Note is
the "Note" referred to in, that certain Security Agreement dated as of the date
hereof between the Company and Payee.
This Note is issued pursuant to the Agreement and is also entitled to
the benefits thereof. As provided in the Agreement, this Note is subject to
mandatory prepayment requirements, and is further subject to optional
prepayments in whole or in part, without any prepayment charge, all as specified
in the Agreement.
Upon surrender of this Note for registration of transfer or assignment,
duly endorsed, or accompanied by a written instrument of transfer or assignment
duly executed, by the registered Holder hereof or such Holder's attorney duly
authorized in writing, a new Note for a like principal amount will be issued to,
and, at the option of the Holder, registered in the name of, the transferee or
assignee. The Company may deem and treat the person in whose name this Note is
registered as the Holder and owner hereof for the purpose of receiving payments
and for all other purposes whatsoever, and the Company shall not be affected by
any notice to the contrary.
If an Event of Default (as defined in the Agreement) shall occur and be
continuing, the principal of this Note may, under certain circumstances, become
or be declared due and payable in the manner and with the effect provided in
said Agreement.
All agreements between the Company and the Payee are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Payee for the use, forbearance
or detention of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term "applicable law" shall mean the
law in effect as of the date hereof, provided, however, that in the event there
is a change in the law which results in a higher permissible rate of interest
than the highest permissible rate under applicable law in effect as of the date
hereof, then this Note shall be governed by such new law as of its effective
date. If, from any circumstance whatsoever, fulfillment of any provision hereof
or the Agreement at the time performance of such provision shall be due, shall
involve transcending the limit of validity prescribed by law, then the
obligation to be fulfilled shall automatically be reduced to the limit of such
validity, and if from any circumstances the Payee should ever receive as
interest an amount which would exceed the highest lawful rate, such amount which
would be excessive interest shall be applied to the reduction of the principal
balance evidenced hereby and not to the payment of interest, and if the
principal amount of this Note has been paid in full, shall be refunded to the
Company. This provision shall
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control every other provision of all agreements between the Company and the
Payee.
ANTIGUA GROUP, INC., a Nevada
corporation
By: /s/ Xxxxxx X. Xxxxxxx
Name:
Title:
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