Exhibit A to Aircraft Security Agreement PROMISSORY NOTE
EXHIBIT 10.2
Exhibit A to
Aircraft Security Agreement
$1,352,612.00 March
3, 2008
For value received,
the undersigned promises to pay to the order of Bank of the West (“Lender”),
having its principal place of business in Walnut Creek, California (together
with any other holder of this Note, hereinafter referred to as the “Holder”),
the principal sum of $1,352,612.00 together with interest thereon as provided
herein. This Promissory Note the “Note” and the obligations of the undersigned
hereunder are “Obligations” secured by the “Collateral” as defined and described
in Aircraft Security Agreement between the undersigned and Holder dated as of
March 3, 2008 (the “Agreement”), and the Holder shall be entitled to all of the
rights and privileges provided therein, including rights of acceleration of this
Note.
This Note shall be
payable by the undersigned to Holder in 60 consecutive monthly installments of
principal and interest (the “Payments”) commencing on March 1, 2008 and
continuing on the same day of each month thereafter through and including March
1, 2013 (the “Maturity Date”). The foregoing Payments shall be fifty-nine
payments of $15,435.00 followed by one (1) payment of $794,715.00.
Notwithstanding the foregoing, the final Payment due and payable on the Maturity
Date shall in any event be equal to the entire outstanding and unpaid principal
amount of this Note, together with all accrued and unpaid, charges and other
amounts owing hereunder and under the Agreement. Interest shall accrue on the
outstanding principal balance of this Note at a fixed rate of 6.19% per annum
(the “Interest Rate”). All interest hereunder shall be calculated on the basis
of a year of three hundred sixty (360) days comprised of twelve (12) months of
thirty (30) days each.
Time is of the
essence in the payment and performance of all Obligations evidenced by this
Note. In addition, the undersigned shall pay overdue interest on any delinquent
Payment or other Obligation due (by reason of acceleration or otherwise) from
thirty (30) days after the due date thereof through the date of payment thereof
at a rate of interest equal to the lesser of (a) five percent (5%) per month, or
(b) the maximum rate of interest allowable under then applicable
law.
Each payment
hereunder shall be made in lawful money of the United States and shall be
payable to such account or address as the Holder hereof shall from time to time
direct the undersigned. Whenever any payment to be made under this Note shall be
stated to be due on a Saturday, Sunday or a public holiday, or the equivalent
for banks generally under the laws of the State of California, such payment
shall be made on the next succeeding Business Day (as defined in the Agreement),
and such extension of time shall be included in the computation of the payment
of interest. All amounts received hereunder or in respect of this Note shall be
applied first, to accrued
late charges and any other costs or expenses due and owning hereunder or under
the terms of the Agreement; second, to accrued
interest; and third , to unpaid
principal. It is the intention of Holder to comply with all applicable usury
laws. Accordingly, it is agreed that notwithstanding anything to the contrary
contained herein, in no event shall any provision contained herein
require or permit interest in excess of the maximum amount permitted by
applicable law to be paid by the undersigned. If necessary to give effect to
these provisions, Holder will, at its option, in accordance with applicable law,
either refund any amount to the undersigned to the extent that it was in excess
of that allowed by applicable law or credit such excess amount against the then
unpaid principal balance hereunder.
Failure to pay this
Note or any installment hereunder promptly when due, upon the occurrence of an
Event of Default (as defined in the Agreement) or default or failure in the
performance or due observance of any of the terms, conditions or obligations
hereunder or under the Agreement or in any other agreement or instrument between
the undersigned (or any endorser, guarantor, surety or other party liable for
the undersigned’s obligations hereunder, or any other entity controlling the
undersigned) and the Holder (or any other entity controlling, controlled by or
under common control with the Holder), shall entitle the Holder to accelerate
the maturity of this Note and to declare the entire unpaid principal balance and
all accrued interest and other charges hereunder (including prepayment fees
calculated as of the date of default) and under the Agreement to be immediately
due and payable, and to proceed at once to exercise each and every one of the
remedies provided in the Agreement or otherwise available at law or in
equity.
The undersigned and
all other parties who may be liable (whether as endorsers, guarantors, sureties
or otherwise) for payment of any sum or sums due or to become due under the
terms of this Note waive diligence, presentment, demand, protest, notice of
dishonor and agree to pay all costs incurred by the Holder in enforcing its
rights under this Note or the Agreement, including reasonable attorney’s fees,
and they do hereby consent to any number of renewals or extensions at any time
in the payment of this Note. No extension of time for payment of this Note made
by any agreement with any person now or hereafter liable for payment of this
Note shall operate to release, discharge, modify, change or affect the original
liability of the undersigned under this Note, either in whole or in part. No
delay or failure by the Holder hereof in exercising any right, power, privilege
or remedy shall be deemed to be a waiver of the same of any part thereof; nor
shall any single or partial exercise thereof or any failure to exercise the same
in any instance preclude any future exercise thereof, or exercise of any other
right, power, privilege or remedy, and the rights and remedies provided for
hereunder are cumulative and not exclusive of any other right or remedy
available at law or in equity. The Holder of this Note may proceed against all
or any of the Collateral securing this Note or against any guarantor hereof, or
may proceed contemporaneously or in the first instance against the undersigned,
in such order and at such times following default hereunder (which has not been
cured within any applicable cure period) as the Holder may determine in its sole
discretion. All of the undersigned’s obligations under this Note are absolute
and unconditional, and shall not be subject to any offset or deduction
whatsoever. The undersigned waives any right to assert, by way of counterclaim
or affirmative defense in any action to enforce the undersigned’s obligations
thereunder, any claim whatsoever against the Holder of this Note.
THIS NOTE SHALL IN
ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA. THE UNDERSIGNED HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA AND THE FEDERAL DISTRICT
COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FOR THE PURPOSES OF ANY SUIT,
ACTION
OR OTHER PROCEEDING ARISING OUT OF ITS OBLIGATIONS HEREUNDER, AND EXPRESSLY
WAIVE ANY OBJECTIONS THAT IT MAY HAVE TO THE VENUE OF SUCH COURTS. THE
UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION
BROUGHT ON OR WITH RESPECT TO THIS NOTE.
IN WITNESS WHEREOF,
the undersigned has caused this Note to be executed by its duly authorized
representative as of the date first above written.
Maker:
Xxxx X.
Xxxxxxxxxx
By: /s/ Xxxx X.
Xxxxxxxxxx
Landpixx,
LLC
By: /s/ Xxxxxxx Xxxxxxxx
Xxxxxxx
Xxxxxxxx, Manager
By: /s/ Xxxx Xxxxxx
Xxxx
Xxxxxx, Manager
