Exhibit 10.38
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
OR APPLICABLE 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 APPLICABLE STATE SECURITIES LAWS OR
AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
Business Loan Note
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Due December 26, 2001 $600,000.00
October 25, 2001
Promise to Pay. For value received, Polar Molecular Corporation (the "Borrower")
promises to pay Affiliated Investments, L.L.C. (the "Lender"), the sum of
$600,000.00 plus interest computed on the basis of the actual number of days
elapsed in a year of 360 days at the rate of:
12.00% per annum (the "Note Rate") until maturity, whether by acceleration
or otherwise, and at the rate of 3% per annum above the Note Rate on
overdue principal from the date when due until paid.
In no event shall the interest rate exceed the maximum rate allowed by law; any
interest payment which would for any reason be deemed unlawful under applicable
law shall be applied to principal.
The Borrower will pay the Note in full on or before December 26, 2001, at which
time the entire balance of unpaid principal plus accrued interest shall be due
and payable immediately. Each payment will be applied first to accrued interest,
then to principal.
Prepayment. There is no penalty for pre-payment.
Security. To secure the payment of this note and any other present or future
liability of the Borrower, the Borrower pledges and grants to the Lender a
continuing security interest in the following described property and all of its
additions, substitutions, increments, proceeds and products, whether now owned
or later acquired ("Collateral"): All assets of the Borrower, including but not
limited to those described in the Security Agreement, Financing Statements and
Assignments of even date herewith executed by the Borrower, all of which become
effective as set forth in the Security Agreement.
Xxxxxx's Right to Setoff. Borrower represents: (a) that the execution and
delivery of this note and the performance of the obligations it imposes do not
violate any law, conflict with any agreement by which it is bound, or require
the consent or approval of any governmental authority or any third party; (b)
that this note is a valid and binding agreement, enforceable according to its
terms; and (c) that all balance sheets, profit and loss statements, and other
financial statements furnished to the Lender are accurate and fairly reflect the
financial condition of the organizations and persons to which they apply on
their effective dates, including contingent liabilities of every type, which
financial condition has not changed materially and adversely since those dates.
Borrower further represents: (a) that it is duly organized, existing and in good
standing pursuant to the laws under which it is organized; and (b) that the
execution
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and delivery of this note and the performance of the obligations it imposes (i)
are within its powers and have been duly authorized by all necessary action of
its governing body; and (ii) do not contravene the terms of its articles of
incorporation or organization, its by laws or any partnership, operating or
other agreement governing its affairs.
Events of Default/Acceleration. If any of the following events occurs, this note
shall be due immediately, without notice, at the Lender's option:
1. Failure to make any payment of any and all amounts required to be paid
hereunder when due or declared due.
2. Default in the performance of any obligation or undertaking of the
Borrower under this note.
3. Incurrence by the Borrower of any lien, security interest or other
charge or encumbrance against the Collateral without the written consent of the
Lender.
4. Sale by the Borrower of any of the Collateral.
5. Dissolution, termination of existence, insolvency, business failure,
appointment of a receiver of any part of the property of, assignment for the
benefit of creditors by, or commencement of any proceeding under any bankruptcy
or insolvency laws by, or against the Borrower which remains uncured or
undismissed for sixty (60) days after the occurrence of such event.
Remedies. If this note is not paid at maturity, whether by acceleration or
otherwise, the Lender shall have all of the rights and remedies provided by any
law or agreement. Any requirement of reasonable notice shall be met if the
Lender sends the notice to the Borrower at least seven days prior to the date of
sale, disposition or other event giving rise to the required notice. The Lender
is authorized to cause all or any part of the Collateral to be transferred to or
registered in its name or in the name of any other person, firm or corporation,
with or without designation of the capacity of such nominee. The Borrower shall
be liable for any deficiency remaining after disposition of any Collateral. The
Borrower is liable to the Lender for all reasonable costs and expenses of every
kind incurred in the making or collection of this note, including, without
limitation, reasonable attorneys' fees and court costs. These costs and expenses
shall include, without limitation, any costs or expenses incurred by the Lender
in any bankruptcy, reorganization, insolvency or other similar proceeding.
Waiver. Each endorser and any other party liable on this note severally waives
demand, presentment, notice of dishonor and protest, and consents to any
extension or postponement of time of its payment without limit as to the number
or period, to any substitution, exchange or release of all or part of the
Collateral, to the addition of any party, and to the release or discharge, or
suspension of any rights and remedies against any person who may be liable for
the payment of this note. No delay on the part of the Lender in the exercise of
any right or remedy shall operate as a waiver. No single or partial exercise by
the Lender of any right or remedy shall preclude any other future exercise of it
or the exercise of any other right or remedy. No waiver or indulgence by the
Lender of any default shall be effective unless in writing and signed by the
Lender, nor shall a waiver on one occasion be construed as a bar to or waiver of
that right on any future occasion.
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Miscellaneous. This note shall be binding on the Borrower and its successors,
and shall inure to the benefit of the Lender, its successors and assigns. Any
reference to the Lender shall include any holder of this note. This note is
delivered in the State of Michigan and governed by Michigan law. Section
headings are for convenience of reference only and shall not affect the
interpretation of this note.
Waiver of Jury Trial. The Lender and the Borrower knowingly and voluntarily
waive any right either of them have to a trial by jury in any proceeding
(whether sounding in contract or tort) which is in any way connected with this
or any related agreement, or the relationship established under them. This
provision may only be modified in a written instrument executed by the Lender
and the Borrower.
Address: Borrower:
0000 Xxxxx Xxxxxx, #700 Polar Molecular Corporation
Denver, CO 80237
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Its President
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