BCInet, Inc. SECURED PROMISSORY NOTE
Exhibit 10.18
BCInet, Inc.
| Loan Amount: | $311,215.00 | |||
| Interest Rate: | 1% per year | |||
| Date of Loan: | August 31, 2009 |
For value received, BCInet, Inc., a Delaware corporation (the “Borrower”), promises
to pay to OCZ Technology Group, Inc., a Delaware corporation (the “Lender”), or the
Lender’s assignees, the principal sum of $311,215.00 together with interest upon the terms and
conditions set forth in this Secured Promissory Note (the “Note”).
1. Term. The entire principal balance of this Note, together with all accrued and unpaid
interest thereon, shall be due and payable eleven (11) months from the date of this Note.
2. Interest. Interest on the outstanding principal balance under this Note shall accrue at
the rate of 1% per year.
3. Prepayment. Prepayment of principal and interest may be made at any time without
penalty.
4. Security. The loan evidenced by this Note and the obligations of the Borrower hereunder
are secured by a pledge of all of the assets of the Borrower pursuant to the terms and conditions
of that certain Security Agreement, dated on the date hereof between the Borrower and Lender, in
the form attached hereto as Exhibit A (the “Security Agreement”).
5. Acceleration of Due Date. The entire unpaid principal balance of this Note, together
with all accrued and unpaid interest thereon, shall, at the election of the Lender, become
immediately due and payable upon the occurrence of any of the following, irrespective of the
payment date set forth in Paragraph 1 of this Note:
| (a) | If at any time the Borrower shall admit in writing its inability to pay debts as they become due, or shall make any assignment for the benefit of any creditors, or shall file a petition seeking any reorganization, arrangement, liquidation, dissolution or composition, readjustment or similar release under any present or future statute, law or regulation, or on the filing or commencement of any petition, action, case or proceeding, voluntary or involuntary, under any state or federal law regarding bankruptcy or insolvency. | ||
| (b) | Borrower is in material breach of the terms of the Security Agreement or this Note. |
6. Collection Costs Borne by Xxxxxxxx. If action is instituted to collect this Note, the
Borrower agrees to pay all costs and expenses, including without limitation reasonable attorneys’
fees, incurred in connection with such action.
BCInet
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7. Waiver. No delay or omission on the part of the Lender in exercising any right under
this Note or any other security agreement given to secure this Note shall operate as a waiver of
such right or of any other right under this Note. Any waiver of any term of this Note must be made
in writing and signed by a duly authorized officer of the Lender. The Borrower hereby waives
presentment for payment, demand, notice of demand and of dishonor and nonpayment of this Note,
notice of intention to accelerate the maturity of this Note, protest and notice of protest,
diligence in collecting, and the bringing of suit against any other party.
8. Maximum Interest Payable. All agreements between the Borrower and the Lender, whether
now existing or subsequently arising and whether written or oral, are limited so that in no
contingency, whether by reason of acceleration of the maturity of the Note or otherwise, shall the
interest contracted for, charged, received, paid or agreed to be paid to the Lender exceed the
maximum amount permissible under applicable law. If, for any reason, interest would otherwise be
payable to the Lender in excess of the maximum lawful amount, the interest payable to the Lender
shall be reduced to the maximum amount permitted under applicable law; and if for any reason the
Lender shall ever receive anything of value deemed interest by applicable law in excess of the
maximum lawful amount, an amount equal to any excessive interest shall be applied to the reduction
of the principal under this Note and not to the payment of interest, or if such excessive interest
exceeds the unpaid balance of principal under the Note, such excess shall be refunded to the
Borrower. All interest paid or agreed to be paid to the Lender shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the full period until
payment in full of the principal (including the period of any renewal or extension) so that the
interest for such full period shall not exceed the maximum amount permitted by applicable law.
This paragraph shall control all agreements between the Borrower and the Lender.
9. Assignment. This Note shall not be assignable by either party without the expres
written consent of the other party.
10. Amendment. This Note may be modified or amended only by written instrument signed by
both parties to this Note.
11. Conflicting Agreements. In the event of any inconsistencies between the terms of this
Note (which may be amended from time to time) and the terms of any other document related to the
loan evidenced by the Note, the terms of this Note shall prevail.
12. Governing Law; Consent to Jurisdiction. This Note shall be governed by the laws of the
State of California and shall be construed in accordance with such laws, irrespective of its choice
of law principles. The Borrower specifically consents to the jurisdiction of the court located in
Santa Xxxxx County, California, or if that Court is unable to exercise jurisdiction for any reason,
to the jurisdiction of the United States Northern District Court located in Santa Xxxxx County,
California, to resolve any dispute or claim under this Note.
[SIGNATURE PAGE FOLLOWS]
BCInet
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IN WITNESS WHEREOF, the Borrower caused this Note to be executed as of the date first above
written.
| BCInet, Inc. | ||||
By: |
||||
| Xxxxxx X. Xxxxxxxx | ||||
| President & CEO | ||||
| ACKNOWLEDGED AND ACCEPTED: | ||||
| OCZ Technology Group, Inc. | ||||
| By: | ||||
| Xxxx X. Xxxxxxxx | ||||
| President & CEO | ||||
BCInet
– Secured Promissory Note (Inventory)
