SECURITY AGREEMENT
Security Agreement (this "Agreement") dated as of April 24, 2002 made
by Save On Energy, Inc., a Georgia corporation (the "Grantor"), to SWI Holdings,
Limited, a Bermuda corporation (the "Secured Party").
PRELIMINARY STATEMENTS:
1. The Secured Party has made a certain loan to Grantor evidenced by a
certain promissory note dated as of the date hereof in the form of Exhibit A
hereto in the original principal amount of $50,000 (the "Note"); and
2. It is the understanding of each of Grantor and Secured Party that
additional loans may be made from time to time by Secured Party to Grantor as
evidenced by additional promissory notes ("Additional Notes", and together with
the Note, the "Notes")
3. The Secured Party and the Grantor have agreed, among other things,
that this Agreement shall be entered into between Grantor and Secured Party in
order to secure the amounts owed by Grantor to Secured Party under the Notes.
NOW, THEREFORE, Grantor hereby agrees with Secured Party as follows:
SECTION 1. Grant of Security. Grantor hereby assigns, conveys,
transfers, delivers and pledges, and hereby grants, to Secured Party a
continuing perfected security interest in and general lien upon (collectively,
the "Pledge"), all of Grantors' right, title and interest in and to the
following:
(a) all of the assets of the Grantor, whether now owned or hereafter
acquired, whether now or hereafter existing (collectively, the "Collateral");
(b) the right to xxx or otherwise recover for any misappropriation or
infringement of the Collateral or any rights or interests therein; and
(c) all proceeds of the foregoing.
SECTION 2. Security for Obligations. The Pledge under this Agreement by
Grantor secures the payment of all obligations of Grantor to Secured Party now
or hereafter existing under this Agreement and the Notes whether for principal,
interest, fees, expenses or otherwise (all such obligations being the "Secured
Obligations"). Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts that constitute part of the Secured
Obligations and would be owed by Grantor to Secured Party but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving Grantor.
SECTION 3. Grantor Remains Liable. Anything herein to the contrary
notwithstanding, (i) Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (ii) the exercise by Secured Party of any of
the rights or remedies hereunder shall not release Grantor from any of its
duties or obligations under the contracts and agreements included in the
Collateral, and (iii) Secured Party has no obligation or liability under the
contracts and agreements included in the Collateral by reason of this Agreement,
nor shall Secured Party be obligated to perform any of the obligations or duties
of Grantor thereunder or to take any action to collect or enforce any claim for
payment Pledged hereunder.
SECTION 4. Representations and Warranties. Grantor represents and
warrants as to itself and the Collateral as follows, which representations and
warranties shall be deemed repeated by Grantor on each day on which any Secured
Obligations remain outstanding:
(a) Grantor is a corporation duly organized, validly existing,
and in good standing under the laws of the state of Georgia.
(b) Grantor has full corporate power and authority to (i) carry on its
present business as currently conducted, (ii) own its properties and assets,
(iii) execute and deliver this Agreement, (iv) borrow and repay with interest
the loan evidenced by the Notes, and (v) perform all of its obligations
hereunder. The Company has taken all requisite corporate and other action to
authorize the execution, delivery and performance of this Agreement. This
Agreement has been duly executed and delivered by the Company.
(c) This Agreement creates a valid, binding, enforceable and perfected
Pledge and security interest in and general Lien upon the Collateral, securing
the payment of the Secured Obligations.
(d) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for (i) the Pledge granted by Grantor hereby or the execution,
deliver or performance of this Agreement by Grantor, (ii) the perfection or
maintenance of the Pledge created hereby, or (iii) the exercise by Secured Party
of its rights provided for in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement, in each case other than the filing of
financing and continuation statements under the Uniform Commercial Code, and
appropriate filings with the United States Patent and Trademark Office.
(e) Grantor has made all necessary filings and recordation to protect
and maintain its interest in the Collateral.
(f) Grantor is the sole legal and beneficial owner of the entire right,
title and interest in and to the Collateral free and clear of any lien, claim,
security interest, pledge, assignment, option, license or other encumbrance of
any kind (collectively, a "Lien"), except for (i) the Pledge created by this
Agreement, (ii) the lien held by Peachtree National Bank arising out of a
certain commercial credit facility maintained by the Grantor (the "Peachtree
Lien"), and (iii) the lien held by New York State Electric and Gas Corporation
("NYSEG") in the assets of Alternative Energy Technologies, Inc. ("AET"), a
wholly-owned subsidiary of Grantor, which lien arose out of a payment obligation
(the "NYSEG Obligation") relating to the sale of certain assets by NYSEG to
Grantor (the "AET Lien")(the Peachtree Lien and the AET Lien are referred to
jointly as the "Permitted Liens"). No effective financing statement or other
instrument similar in effect covering all or any part of the Collateral or
listing Grantor or any trade name of Grantor as debtor is on file in any
recording office (including, without limitation, the United States Patent and
Trademark office) except for the Permitted Liens.
(g) Grantor has not made a previous assignment, transfer or agreement
constituting a present or future assignment, transfer or encumbrance of any of
the Collateral. Grantor has not granted any license, release, covenant not to
xxx or non-assertion assurance to any person or entity with respect to any part
of the Collateral.
(h) Grantor has no knowledge of the existence of any right or any claim
that is likely to be made by any third party relating to any item of Collateral.
(i) No claim has been made and is continuing or threatened that any
item of Collateral is invalid or unenforceable or that the use by Grantor of any
Collateral does or may violate the rights of any person or entity.
(j) There are no conditions precedent to the effectiveness of
this Agreement that have not been satisfied or waived.
(k) There are no legal actions, suits, arbitration proceedings,
official investigations or other proceedings pending or, to the knowledge of the
Grantor, threatened against the Grantor that if adversely determined would
materially affect the Collateral or the validity or enforceability of this
Agreement.
(l) Grantor is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), has a class of securities
registered under Section 15 of the Exchange Act, and has filed all reports
required by the Exchange Act since the date Grantor first became subject to such
reporting obligations, except for the most recent 10-KSB as of 12/31/01 which
was due as of 3/31/02 and which, as of the date hereof, remains unfiled and
delinquent.
(m) Except for the NYSEG Obligation, Grantor is not in default under
any agreement relating to, or instrument evidencing, indebtedness or any other
material agreement to which it is a party or by which it or its assets are
bound.
(n) Grantor's principal place of business is located at 0000 Xxxxxxx
Xxxxxxx 00, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxx 00000.
SECTION 5. Further Assurances and Other Covenants.
(a) Grantor shall maintain as its independent auditors an accounting
firm authorized to practice before the SEC.
(b) Grantor shall maintain its corporate existence in good standing and
shall pay and discharge in a timely manner in order to avoid material penalties
all material taxes and governmental charges upon it or against any of its
properties or assets, except to the extent that Grantor shall be contesting in
good faith its obligation to pay such taxes or charges. Grantor shall make
timely filings of all material tax returns and governmental reports required to
be filed or submitted under any applicable laws.
(c) Grantor shall not (i) transfer, sell, convey or otherwise dispose
of any of its material assets to any subsidiary except for a cash or cash
equivalent consideration and for a proper business purpose, or (ii) transfer,
sell, convey or otherwise dispose of any of its material assets to any
Affiliate, as defined below, during the period that any amounts remain
outstanding under any of the Notes. For purposes hereof, "Affiliate" shall mean
any officer of Grantor, director of Grantor or owner of twenty percent (20%) or
more of the common stock or other securities of Grantor.
(d) Grantor shall timely file all reports required under the Exchange
Act and fulfill all requirements for maintenance of the listing of its common
stock on the OTC Bulletin Board, except for the most recent 10-KSB as of
12/31/01, which was due as of 3/31/02 and which, as of the date hereof, remains
delinquent (the continued non-filing of which could result in delisting).
(e) Grantor shall maintain in full force and effect and comply with all
consents, authorizations, approvals, licenses and orders of any governmental or
other authority that are required to be obtained by it with respect to this
Agreemnt, the Notes or the transactions contemplated thereby and shall use all
reasonable efforts to obtain any such consents, authorizations, approvals,
licenses and orders that may become necessary in the future.
(f) Grantor agrees that from time to time, at its own expense, it shall
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or that Secured Party may deem desirable
and may reasonably request, in order to create, maintain, perfect and protect
any Pledge, assignment, lien or security interest granted or purported to be
granted hereby or to enable Secured Party to exercise and enforce its rights and
remedies hereunder with respect to all or any part of the Collateral.
(g) Grantor hereby authorizes Secured Party to file one or more
financing or continuation statements, and amendments thereto, relating to all or
any part of the Collateral without the signature of Grantor where permitted by
applicable law. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by applicable law.
(h) Grantor shall furnish promptly to Secured Party from time to time
upon reasonable request by Secured Party schedules identifying and describing
the Collateral in reasonable detail.
(i) In the event that Grantor becomes aware that any item of the
Collateral is infringed or misappropriated by a third party, Grantor shall
promptly notify Secured Party in writing and shall take such actions as Secured
Party deems reasonable and appropriate under the circumstances to protect such
Collateral, including, without limitation, suing for infringement or
misappropriation and for an injunction against such infringement or
misappropriation. Any expense incurred in connection with such activities shall
be borne by Grantor.
(j) Grantor shall take all steps which it or Secured Party deems
appropriate under the circumstances to preserve and protect the Collateral.
(k) Grantor shall not change its name or the location of its principal
place of business identified in section 4(n) hereof without at least ten (10)
days' prior written notice to Secured Party.
SECTION 6. Transfer and Other Liens. Grantor agrees not to (i) sell,
transfer, assign or otherwise dispose of (by operation of law or otherwise), or
grant any lease, license or option with respect to or any interest in, any item
of the Collateral, except in the ordinary course of business, or (ii) create,
grant or suffer to exist any Lien upon or with respect to any of the Collateral,
except for the Liens created by this Security Agreement and the Permitted Liens.
SECTION 7. Events of Default. The occurrence of any of the following
events or conditions shall constitute an event of default (each, an "Event of
Default") under this Agreement:
(a) The occurrence and continuation of an Event of Default as defined
in any of the Notes; or
(b) Grantor fails to make, when due, any transfer, delivery, pledge,
assignment or grant of Collateral required to be made by it hereunder and that
failure continues unremedied for five (5) days after Secured Party gives written
notice of that failure to Grantor; or
(c) Any representation or warranty relied upon by Secured Party and
made or repeated or deemed made or repeated by Grantor herein shall prove to be
false or misleading in any material respect as of the date made or repeated or
deemed to have been made or repeated.
(d) The failure or refusal by Grantor to observe or perform, or the
breach or violation of, any of the terms, obligations, agreements, covenants or
warranties of this Agreement other than those specified in clauses (a) through
(c) above and that failure or refusal continues unremedied for ten (10) days
after Secured Party gives written notice of such failure or refusal to Grantor.
SECTION 8. Secured Party Appointed Attorney-in-Fact. Grantor hereby
irrevocably appoints Secured Party Grantor's attorney-in-fact, with full
authority in the place and stead of Grantor and in the name of Grantor or
otherwise, from time to time upon the occurrence and during the continuance of
an Event of Default and with prior written notice to Grantor, to take any action
and to execute any instrument or document that may be necessary or that Secured
Party may deem desirable to accomplish the purposes of this Agreement,
including, without limitation:
(a) to ask for, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) to receive, endorse and collect any drafts, instruments, chattel
paper and other documents in connection with subsection (a) above and give full
discharge for the same; and
(c) to file any claims or take any action or to institute any
proceedings that may be necessary or that Secured Party may deem desirable for
the collection of any payments relating to any of the Collateral or otherwise to
enforce the rights of Secured Party with respect to any of the Collateral.
The appointment set forth in this Section 8 is coupled with an interest
and is irrevocable.
SECTION 9. Secured Party May Perform. If Grantor fails to perform any
agreement contained herein, Secured Party, with prior written notice to Grantor,
may itself perform, or cause performance of, such agreement, and the expenses of
Secured Party incurred in connection therewith shall be payable by Grantor under
Section 13 hereof.
SECTION 10. Secured Party's Duties. The powers conferred on Secured
Party hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the exercise
of reasonable care in the safe custody and preservation of, and the accounting
for, moneys actually received by it hereunder, Secured Party shall have no duty
as to any Collateral, whether or not Secured Party has or is deemed not to have
knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Collateral.
SECTION 11. Remedies. If any Event of Default shall have occurred and
be continuing:
(a) Secured Party may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the right and remedies of a secured party upon default under the
Uniform Commercial Code in effect in the State of New York at such time (the
"New York UCC") whether or not the New York UCC applies to the affected
Collateral, and also may (i) require Grantor to, and Grantor hereby agrees that
it shall at its own expense and upon request of Secured Party as quickly as
practicable, assemble all or part of the documents and things embodying any part
of the Collateral as directed by Secured Party and make them available to
Secured Party at a place to be designated by Secured Party that is reasonably
convenient to both parties and (ii) without notice except as specified below,
sell the Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or at any of Secured Party's
offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as Secured Party may deem commercially reasonable. Grantor agrees
that, to the extent notice of sale shall be required by law, at least ten (10)
days' notice to Grantor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. Secured Party shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. Secured Party may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale, without further notice, may be made at
the time and place to which it was so adjourned.
(b) Any and all cash proceeds received by Secured Party in respect of
any sale of, collection from, or other realization upon, all or any part of the
Collateral may, in the discretion of Secured Party, be held by Secured Party as
collateral for and/or then or at any time thereafter applied in whole or in part
by Secured Party against, all or any part of the Secured Obligations in such
order as specified in the Note to the extent such order of application is not
inconsistent with applicable law.
(c) It is understood that Grantor shall remain liable to the extent of
any deficiency between the amount of the proceeds of the Collateral and the
aggregate amount of the Secured Obligations.
(d) Secured Party may exercise any and all rights and remedies of
Grantor in respect of the Collateral, including, without limitation, any and all
rights of Grantor to demand or otherwise require payment of any amount under, or
performance of any provision of, any of the Collateral.
(e) All payments received by Grantor in respect of the Collateral shall
be received in trust for the benefit of Secured Party, shall be segregated from
other funds of Grantor and shall be forthwith paid over to Secured Party in the
same form as so received (with any necessary endorsement or assignment).
SECTION 13. Indemnity and Expenses.
(a) Grantor agrees to indemnify Secured Party and its shareholders,
officers, directors, employees, agents and advisors, if any (each an
"Indemnified Party") from and against any and all claims, losses, damages,
liabilities, costs and expenses, including, without limitation, the reasonable
fees and expenses of counsel and of any experts and agents (collectively,
"Losses") arising out of or resulting from this Agreement (including, without
limitation enforcement of this Agreement), except to the extent that such Losses
are found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. This Section 13 shall survive any termination of this
Agreement.
(b) Grantor agrees to pay to Secured Party, upon written demand, the
amount of any and all reasonable expenses (including, without limitation, the
reasonable fees and expenses of its counsel and of any experts and agents) that
Secured Party may incur in connection with (i) the administration of this
Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of Secured Party or (iv) the
failure by Grantor to perform or observe any of the provisions hereof.
SECTION 14. Amendments; Waivers; Etc.
(a) No amendment or waiver of any provision of this Agreement, and no
consent to any departure of the terms by Grantor herefrom, shall in any event be
effective unless the same shall be in writing and signed by the parties hereto,
except as provided in Section 5(g) hereof, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
(b) No failure on the part of Secured Party to exercise, and no delay
in exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or consent thereto; nor shall any single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
SECTION 15. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing and shall be given and be effective
as set forth in the Notes.
SECTION 16. Continuing Security Interest; Assignments. This Agreement
shall create a continuing security interest and Pledge in the Collateral and
shall (i) remain in full force and effect until the payment in full of the
Secured Obligations, (ii) be binding upon Grantor, its successors and permitted
assigns and (iii) inure, together with the rights and remedies of Secured Party
hereunder, to the benefit of, and be enforceable by, Secured Party and its
respective successors, and permitted transferees and assigns. Neither party
hereto may assign, transfer or otherwise dispose of this Agreement or any of its
rights, remedies, duties, agreements or obligations hereunder without the prior
written consent of the other party hereto; provided, however, that Secured Party
may assign or otherwise transfer all or any portion of such rights, remedies,
duties, agreements and/or obligations to any person or entity in connection with
the assignment or transfer of the Notes to such person or entity without
obtaining such consent from Grantor but shall provide prior written notice
thereof to Grantor. Any purported assignment, transfer or other disposition in
violation of this Section 16 shall be null and void.
SECTION 17. Release and Termination. Upon the payment in full of the
Secured Obligations, the Pledge granted hereby shall automatically terminate and
all rights to the Collateral shall revert to Grantor. Upon any such termination
and reversion, Secured Party shall, at Grantor's expense, execute and deliver to
Grantor such instruments and documents as Grantor shall reasonably request in
writing to evidence such termination and reversion.
SECTION 18. GOVERNING LAWS, JURISDICTION, ETC. (a) THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN SUCH STATE WITHOUT
REFERENCE TO CHOICE OF LAW PRINCIPLES. UNLESS OTHERWISE DEFINED HEREIN, TERMS
USED IN ARTICLE 9 OF THE NEW YORK UCC ARE USED HEREIN AS THEREIN DEFINED. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE NOTES SHALL BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH SUCH PARTY HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM
THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH PARTY, AND AGREES NOT
TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR THE NOTES BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH
COURT LACK PERSONAL JURISDICTION OVER SUCH PARTY. EACH SUCH PARTY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS
IDENTIFIED PURSUANT TO SECTION 15 HEREOF. EACH SUCH PARTY HEREBY IRREVOCABLY
WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
OR UNDER THE NOTES THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF SECURED PARTY TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY PARTY IN ANY OTHER JURISDICTION.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE NOTES
BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENCE FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE NOTES OR THE TRANSACTIONS THEREBY.
SECTION 19. Cumulative Rights. All of Secured Partys' rights and
remedies with respect to the Collateral, whether established hereby or by any
other agreements or by law, shall be cumulative and may be exercised singularly
or concurrently.
SECTION 20. Severability. If any provision of this Agreement is invalid
or unenforceable, then, to the extent possible, all of the remaining provisions
of this Agreement shall remain in full force and effect and shall be binding on
the parties hereto.
SECTION 21. Entire Agreement. This Agreement, together with the Notes,
contains the entire agreement between the parties relating to the subject matter
hereof and supersedes all oral statements and prior writings with respect
thereto.
SECTION 22. Counterparts. This Agreement may be executed in any
number of counterparts each of which when so executed and delivered shall be
deemed an original and all of which taken together shall constitute one
agreement.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
SAVE ON ENERGY, INC.
By:_________________________________
Name:
Title:
Agreed and consented to as of the date first above written:
SWI HOLDINGS, INC.
By:________________________________
Name: Xxxxxxxx Xxxxxx
Title: President
EXHIBIT A
CONVERTIBLE SECURED PROMISSORY NOTE
