EXHIBIT 10.1
TERM CREDIT AGREEMENT
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THIS TERM CREDIT AGREEMENT (this "Agreement") is made and entered into
as of May 6, 2004, by and between VISIJET INC. ("Borrower") and HIT CREDIT UNION
("Lender"), with reference to the following:
WITNESSETH:
WHEREAS, Lender desires to make a Term Loan to Borrower, and Borrower
desires to borrow from Lender the amount of such Term Loan, subject to and in
accordance with the terms and conditions set forth herein, and in the Note and
the Security Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the delivery,
receipt, and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"BUSINESS DAY" means a day (a) other than Saturday or Sunday, and (b)
on which commercial banks are open for business in New York, New York, and Los
Angeles, California.
"CLOSING DATE" means the date each of the conditions precedent set
forth in SECTION 5 hereof is fully satisfied.
"COLLATERAL" has the meaning assigned to such term in the Security
Agreement. "EVENT OF DEFAULT" has the meaning set forth in SECTION 8.
"INTEREST RATE" has the meaning set forth in SECTION 2(c).
"LIEN" means any mortgage, deed of trust, pledge, security interest,
assignment, deposit arrangement, charge or encumbrance, lien (statutory or
other), or other preferential arrangement (including any conditional sale or
other title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing or any agreement to give any
security interest).
"MATURITY DATE" has the meaning set forth in SECTION 2(b).
"NOTE" has the meaning set forth in SECTION 2(d).
"PERSON" means an individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or any other
juridical entity.
"SECURED OBLIGATIONS" has the meaning assigned to such term in the
Security Agreement.
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"SECURITY AGREEMENT" means that Security Agreement by and between
Borrower and Lender, in the form of EXHIBIT B attached hereto.
"TERM LOAN" has the meaning set forth in SECTION 2(a).
2. AMOUNT AND TERMS OF THE TERM LOAN.
(a) TERM LOAN ADVANCE. Subject to the terms and conditions of
this Agreement, Lender hereby agrees to make a loan to Borrower (the "Term
Loan") on the Closing Date in the principal amount of Seven Hundred Fifty
Thousand U.S. Dollars (U.S.$750,000), which amount may be repaid at any time
prior to the Maturity Date without premium or penalty, but may not be reborrowed
once repaid.
(b) TERM. All unpaid principal and accrued but unpaid interest
of the Term Loan shall, subject to subsection (c) below, be payable in full on
July 5, 2004 (the "Maturity Date").
(c) INTEREST RATE AND INTEREST PAYMENTS. Borrower shall pay
interest on the unpaid principal amount of the Term Loan from the Closing Date
until the Maturity Date, at a rate equal to fifteen percent (15.0%) PER ANNUM
(the "Interest Rate"). Subject to SECTION 2(e) AND 2(g) below, interest on the
outstanding principal amount of the Term Loan shall be due and payable to Lender
in advance (i) on the Closing Date and, (ii) thereafter, on the last Business
Day of each calendar month, commencing on the first of such dates following the
Closing Date until the Maturity Date, at which time all accrued but unpaid
interest shall be due and payable.
(d) PROMISSORY NOTE. The Term Loan shall be evidenced by a
promissory note (the "Note") in the form of Exhibit "A" attached hereto, duly
executed and delivered to Lender by Borrower.
(e) INTEREST ON EVENT OF DEFAULT. Upon the occurrence and
during the continuance of an Event of Default, Borrower agrees to pay interest
on the entire unpaid principal amount of the Term Loan, as well as on any
interest or other amount past due, from the date of such Event of Default until
the date the same is cured in full, payable on demand, at a fluctuating rate PER
ANNUM equal at all times to the Interest Rate PLUS two percent (2.0%).
(f) MANNER OF PAYMENT. All payments of principal or interest
hereunder or under the Note shall be delivered to Lender in immediately
available funds on the date due at such place as Lender may from time to time
designate.
(g) LIMITATION ON INTEREST RATE. In no contingency or event
whatsoever shall the aggregate of all amounts deemed interest hereunder and
charged or collected by Lender or any holder of the Note exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that Lender has charged or received interest hereunder or under the
Note in excess of the highest applicable rate, the rate in effect hereunder and
under the Note shall automatically be reduced to the maximum rate permitted by
applicable law and Lender shall apply all interest paid in excess of the maximum
lawful rate to the principal balance of the amounts outstanding hereunder and
under the Note. It is the intent of the parties hereto that Borrower not pay or
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contract to pay, and that Lender not receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by Borrower to Lender under applicable law.
3. REPRESENTATIONS AND WARRANTIES. In order to induce Lender to enter
into this Agreement and to make the Term Loan contemplated hereunder, Borrower
hereby represents and warrants to Lender as follows:
(a) LEGAL STATUS. Borrower is a corporation duly incorporated,
validly existing, and in good standing under the laws of the State of Delaware.
Borrower is qualified or licensed to do business, and is in good standing as a
foreign corporation in all jurisdictions in which such qualification or
licensing is required or in which the failure to so qualify or to be so licensed
could have a material adverse effect on Borrower.
(b) AUTHORIZATION AND VALIDITY. This Agreement, the Security
Agreement and the Note have been duly authorized, and upon their execution and
delivery in accordance with the provisions hereof and thereof will constitute
legal, valid and binding agreements and obligations of Borrower, enforceable in
accordance with their respective terms.
(c) NO CONFLICT. The execution, delivery, and performance by
Borrower of this Agreement, the Security Agreement and the Note do not and will
not conflict with the terms of the Certificate of Incorporation or bylaws of
Borrower, violate any provision of any judgment, decree or order of any court or
governmental authority by which Borrower is bound, or any provision of any law
or regulation applicable to Borrower, or result in a breach of or constitute a
default under any contract, obligation, indenture, or other instrument to which
Borrower is a party or by which Borrower may be bound.
(d) NO CONSENTS. The execution, delivery, and performance by
Borrower of this Agreement, the Security Agreement and the Note do not and will
not require any authorization, approval, or other action by, or notice to or
filing with, any governmental authority, regulatory body, or any other person or
entity.
(e) USE OF PROCEEDS. No proceeds of the Term Loan will be used
to acquire any equity security of a class that is registered pursuant to Section
12 of the Securities Exchange Act of 1934, as amended.
(f) MARGIN STOCK. Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation G or U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of the Term Loan will be used to purchase or
carry any margin stock or extend credit to others for the purpose of purchasing
or carrying any margin stock, or be used for any purpose which violates or is
inconsistent with the provisions of Regulation X of said Board of Governors.
4. COVENANTS. Borrower hereby covenants that until all amounts
outstanding hereunder and under the Note have been indefeasibly paid in full, it
shall:
(a) PUNCTUAL PAYMENTS. Punctually pay the interest and
principal with respect to the Term Loan as provided herein and in the Note.
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(b) EXISTENCE. Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its existence and comply with
the provisions of all documents pursuant to which it is organized and/or which
govern its continued existence; maintain all licenses, permits, governmental
approvals, rights, privileges, and franchises necessary for the conduct of its
business; and conduct its business in an orderly and regular manner and in
accordance with all laws, rules, regulations, and orders of any governmental
authority having jurisdiction over it or its business.
(c) BOOKS AND RECORDS. Maintain adequate books and records in
accordance with generally accepted accounting principles consistently applied,
and permit any representative of Lender, at any reasonable time, to inspect,
audit and examine such books and records, to make copies of the same, and to
inspect its assets and properties.
5. CONDITIONS PRECEDENT TO TERM LOAN. The obligation of Lender to make
the Term Loan shall be subject to the condition precedent that Lender shall have
received each of the following, each in form and substance satisfactory to
Lender:
(a) This Agreement, duly executed by all of the parties
hereto;
(b) The Note, duly executed by Borrower;
(c) The Security Agreement, duly executed by Borrower;
(d) A duly executed warrant to purchase 500,000 shares of
common stock of Borrower, in form and substance acceptable to Lender, issued by
Borrower for the benefit of Lender, as holder thereof;
(e) A duly executed stock power certificate in blank; and
(f) Such additional supporting documents as Lender or its
counsel may reasonably request.
6. LOAN FEE. Borrower shall pay to Lender on the Closing Date $75,000
in consideration of Lender agreeing to enter into the transactions set forth
herein, which amount shall be non-refundable and deemed fully-earned upon
Lender's receipt thereof.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrower covenants,
warrants and represents to Lender that all representations and warranties of
Borrower contained in this Agreement, the Security Agreement, or the Note shall
be true at the time of Borrower's execution of this Agreement, the Security
Agreement and the Note, and shall survive the execution, delivery and acceptance
thereof by Lender and the parties thereto and the closing of the transactions
described therein or related thereto.
8. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" and shall, at the option of Lender, require
immediate payment in full of all sums then remaining unpaid hereunder and under
the Note:
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(a) FAILURE TO PAY THE NOTE. The failure of Borrower to pay
any principal, interest or other amount due under the Note when due and payable.
(b) BREACH OF COVENANT, REPRESENTATION OR WARRANTY. The
failure of Borrower to perform or observe any covenant, condition or agreement
contained in this Agreement or the Security Agreement (other than the payment
obligations, the breach of which shall be governed by subsection (a) above)
where such failure is not cured within five (5) Business Days, or any
representation or warranty made or deemed made by any of them under or in
connection with this Agreement or the Security Agreement, shall prove to have
been false or misleading in any material respect when made.
(c) NON-PAYMENT OF INDEBTEDNESS. Borrower shall default in the
payment when due of any indebtedness for borrowed money if the effect of any
such default is to cause or permit the acceleration of such indebtedness, or to
permit the holder of any note evidencing such indebtedness to cause the same to
become due prior to its stated maturity.
(d) LIENS. Borrower creates, incurs, assumes or suffers to
exist any Lien upon or with respect to the Collateral, including, without
limitation, any governmental, tax, or judgment Lien and fails to have the same
removed or released within two Business Days after the creation thereof.
(e) INSOLVENCY. Borrower shall become insolvent; admit in
writing its inability to pay its debts as they mature; make an assignment for
the benefit of creditors; or if bankruptcy proceedings or other proceedings for
relief under any bankruptcy law or any law for the relief of debtors shall be
instituted by or against it and, if instituted against it, the same is not
dismissed within thirty (30) days of the filing thereof.
(f) DISSOLUTION. Any order, judgment, or decree shall be
entered against Borrower decreeing its involuntary dissolution or split up and
such order shall remain undischarged and unstayed for a period in excess of
thirty (30) days; or Borrower shall otherwise dissolve or cease to exist.
9. REMEDIES. If an Event of Default shall occur, (a) all amounts
outstanding hereunder or under the Note, notwithstanding any term of this
Agreement, the Security Agreement, or the Note to the contrary, shall at
Lender's option and without notice to Borrower become immediately due and
payable, without presentment, demand, protest or notice of dishonor, all of
which are hereby expressly waived by Borrower, and (b) Lender shall have all
rights, powers and remedies available hereunder, under the Security Agreement,
or accorded by law, including without limitation the right to resort to any or
all security for the Secured Obligations and to exercise any or all of the
rights of a beneficiary or secured party pursuant to applicable law. All rights,
powers and remedies of Lender in connection with this Agreement, the Security
Agreement, and the Note may be exercised at any time by Lender and from time to
time after the occurrence of an Event of Default, are cumulative and not
exclusive, and shall be in addition to any other rights, powers or remedies
provided by law or equity.
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10. SECURITY. As security for the obligations of Borrower hereunder and
under the Note, Borrower shall grant to Lender a security interest in certain of
its assets pursuant to the Security Agreement.
11. MISCELLANEOUS.
(a) FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on
the part of Lender, or any holder of the Note in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof or of any other right, power or privilege.
(b) MODIFICATION. No modification, amendment or waiver of any
provision of this Agreement, the Security Agreement, or the Note, nor the
consent to any departure by Borrower therefrom, shall in any event be effective
unless the same shall have been approved by Lender and shall be in writing
signed by Lender and, with respect to any amendment, Borrower. Such waiver or
consent shall then be effective only in the specific instance and for the
purpose for which given. No notice to or demand on Borrower in any case shall
entitle Borrower to any other or further notice or demand in the same, similar
or other circumstances.
(c) NOTICES. Except as otherwise expressly provided herein,
any notice herein required or permitted to be given shall be in writing and
shall be deemed effective when personally delivered, mailed, telecopied (with a
confirming copy sent by mail) or delivered by telex to the appropriate party at
the address set forth below (or at such other address as may be designated by
either party in a written notice sent in accordance with this Section):
If to Borrower: Visijet Inc.
000 Xxxxxxxxxx Xxxxx, Xxxxx X
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy No.: 949-450-1660
If to Lender: HIT Credit Union
Berth 4, Block 2, 2/F
Container Xxxx Xxxx, Xxxxx Xxxx Xxxxx
Xxx Xxxxxxxxxxx, Xxxx Xxxx
Telecopy No.: x000-0000-0000
with a copy to: SBI Advisors, LLC
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telecopy No.: 000-000-0000
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(d) SEVERABILITY. In case any provision in this Agreement, the
Security Agreement, or the Note shall be invalid, illegal or unenforceable, such
provision shall be severable from the remainder of such contract and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(e) APPLICABLE LAW. This Agreement, the Security Agreement,
and the Note, and the rights and obligations of the parties thereto, shall be
governed by the laws of the State of California, exclusive of its conflicts of
laws and choice of laws rules that would or may cause the application of the
laws of any jurisdiction other than the State of California.
(f) ASSIGNABILITY. Borrower shall not assign its rights or
obligations hereunder, under the Security Agreement, or under the Note to any
other Person without the prior written consent of Lender, and any attempted
assignment in violation hereof shall be null and void AB INITIO. Lender shall
have the right to assign their rights and obligations hereunder and no consent
or approval from Borrower is required in connection with any such assignment.
(g) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(h) SECTION HEADINGS. The various headings used in this
Agreement are inserted for convenience only and shall not affect the meaning or
interpretations of this Agreement or any provision hereof.
(i) ATTORNEYS' FEES. In the event any party institutes any
action or proceeding to enforce the terms and conditions of this Agreement, the
Security Agreement, or the Note, the prevailing party shall be entitled to
reasonable attorneys' fees and costs.
(j) WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF
ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON
THIS AGREEMENT, THE NOTE, OR THE SECURITY AGREEMENT, THE SUBJECT MATTER HEREOF
AND THEREOF OR ANY DOCUMENT RELATING HERETO OR THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT, TORT OR OTHERWISE.
(k) INTEGRATION. This Agreement, the Security Agreement and
the Note reflect the entire understanding of the parties with respect to the
transactions contemplated hereby and shall not be contradicted or qualified by
any other agreement, oral or written, whether before or after the date hereof.
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IN WITNESS WHEREOF, the parties hereto do execute this Agreement as of
the date first above written.
"BORROWER"
VISIJET INC.
By: /S/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
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Its: COO, Corporate Secretary and Treasurer
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"LENDER"
HIT CREDIT UNION
By:
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Name:
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Its:
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EXHIBITS
EXHIBIT "A" - TERM NOTE
EXHIBIT "B" - SECURITY AGREEMENT
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