Exhibit 4.9
SECURED PROMISSORY NOTE
$675,000.00
March 1,2003
1. Parties
1.1 Xxxxxxxx Aerospace Technologies, Inc., a Delaware corporation
with its principal place of business in Pima County1 Arizona, and Renegade
Venture Corporation, a Nevada corporation, jointly and severally (collectively
"Borrowers').
1.2 American Capital Ventures, L.L.C., a Florida limited
liability company ("Lender").
2. Borrowers' Promise to Pay.
2.1 For value received, Borrowers jointly and severally promise
to pay to the order of Lender, its successor or assigns, Six Hundred
Seventy-Five Thousand and 00/l00 Dollars ($675,000.00), in 1awful currency of
the United States of America (the "Principal"), plus interest (the "Interest")
on the Principal from time to time remaining unpaid.
2.2 Lender may, at its option and in its sole and absolute
discretion, advance additional funds to Borrowers in an amount not to exceed
$2,000,000.00. If such additional funds are advanced by Lender to Borrowers,
such additional funds shall be governed by all of the terms of this Note, and
the Security Agreements shall secure same to the same extent as the funds
initially funded under this Note.
3. Payments
3.1 So long as no default exists under or with respect to this
Promissory Note (this "Note"), the Security Agreements securing this Note of
even date herewith (the "Security Agreements") which are by this reference
expressly incorporated herein, or any other documents executed in connection
therewith or any other documents executed by Borrowers in favor of Lender
(whether or not directly attributable to this Note or the Security Agreements,
Interest on this Note shall be payable in monthly installments at the rate of
one and One quarter percent (1.25%) per month. The rate of Interest applied
shall sometimes be referred to herein as the "Applicable Interest Rate."
3.2 Upon default in this Note, Interest shall be payable at the
highest rate of interest permitted by law or, if no maximum rate is prescribed
by law, at the annual rate of eighteen percent (18%) per annum (the "Default
Rate") ,subject to the terms hereof.
3.3 Commencing on the first (1st) day of April, 2003, and then
monthly on the first (1st) day of each and every month thereafter (hereinafter
referred to as a "Payment Date"), Borrowers shall pay monthly installments of
Interest on the then outstanding Principal balance of the Note.
3.4 The entire unpaid Principal and any accumulated, accrued or
unpaid Interest thereon shall be due and payable on the first (I SI) day of
September, 2003 (the "Maturity Date"). Lender may, at its option in its sole and
absolute discretion, and subject to the requirements of Paragraph 13.7 of this
Note, extend the Maturity Date of this Note for an additional three (3) months,
up to and including December 1, 2003. Notwithstanding the foregoing, in the
event of any placement or sale, prior to the Maturity Date, of any debt or
equity by the Borrowers in an amount which is equal to or greater than
$300,000.00, then that amount of the Note shall be due immediately upon such
placement or sale in the same manner as if the Maturity Date had occurred.
3.5 Interest shall be calculated on the basis of the actual
number of days elapsed divided by 365.
3.6 All payments hereunder shall be made in lawful money of the
United States of America.
3.7 In the event that the Applicable Interest Rate or the Default
Rate exceeds the maximum rate of interest allowed by applicable law, as amended
from time to time, in any interest period during the term or any extension of
this Note, only the maximum rate of interest allowed shall then be charged, but
thereafter in any interest period or periods during which the rate is less than
the maximum rate allowed by applicable law, as amended from time to time, the
Applicable Interest Rate and the Default Rate shall be increased so that Lender,
its successors or assigns, may collect interest in such amount as may have been
charged pursuant to the terms of this Note, but which was not charged because of
the limitation imposed by law.
3.8 It is the intent of the parties hereto that in no event shall
the amount of interest due or payment in the nature of interest payable
hereunder exceed the maximum rate of interest allowed by applicable law, as
amended from time to time, and in the event any such payment is paid by
Borrowers or received by the Lender, then such excess sum shall be credited as a
payment of principal, unless Borrowers shall notify lender, in writing, that
Borrowers elect to have such excess sum returned to it forthwith. Lender may, in
determining the maximum rate of interest allowed under applicable law, as
amended from time to time, take advantage of any law, rule, or regulation in
effect from time to time, available to Lender which exempts Lender from any
limit upon the rate of interest it may charge or grants to Lender the right to
charge a higher rate of interest than that allowed by Arizona law.
4. Application of Payments. So long as no default has occurred in this
Note, all payments hereunder shall first be applied to Interest, then to
Principal. Upon default in this Note, all payments hereunder shall first be
applied to costs pursuant to Section 8.3, then to Interest and the remainder to
Principal.
5. Prepayment. This Note may be prepaid in whole or in part without
penalty. Any prepayment shall be accompanied by an amount equal to the Interest
accrued thereon to the date of receipt of such prepayment in collected funds.
6. Other Instruments. The term "Loan Documents" shall mean any and all
of the documents heretofore, now or hereafter executed by Xxxxxxxxx, by others,
or by Borrowers and others, in favor of Lender, which wholly or partly secure or
are executed in connection with this Note, including, without limitation, the
Security Agreements.
7. Place of Payment All payments hereunder shall be made at the office
of Lender located at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000, or such other place as Lender may from time to time designate in writing.
8. Default
8.1 If any payment of Principal, Interest, or other sum due
Lender hereunder or under any of the Loan Documents is not paid within ten (10)
calendar days after the date when due, or if any other default occurs under any
of the Loan Documents or under any other document executed by Borrowers in favor
of Lender and is not cured within the applicable grace period, if any, or if any
obligation of Borrowers under any of the Loan Documents is not fully performed,
then this Note shall be in default.
8.2 Upon default in this Note, Lender, at its option, may declare
the entire unpaid Principal balance of this Note, together with accrued
Interest, to be immediately due and payable without notice or demand.
8.3 In addition to payments of Interest and Principal, if there
is a default in this Note, Lender shall be entitled to recover from Borrowers
all of Xxxxxx's costs of collection, including Xxxxxx's attorneys' fees,
paralegal's fees and legal assistants' fees (at all tribunal levels, whether for
services incurred in collection, litigation, bankruptcy proceedings, appeals, or
otherwise), and all other costs incurred in Connection therewith.
9. Late Charge A late charge of Twenty-Five ($25.00) Dollars shall be
imposed on each and every payment, including the final payment due hereunder,
not received by Xxxxxx within ten (10) days after it is due. The late charge is
not a penalty, but liquidated damages to defray administrative and related
expenses due to such late payment. The late charge shall be immediately due and
payable and shall be paid by Borrowers to Lender without notice or demand. This
provision for a late charge is not and shall not be deemed a grace period' and
Lender has no obligation to accept a late payment. The acceptance of a late
payment shall not constitute a wavier of any default then existing or thereafter
arising in this Note. Further, Xxxxxx's failure to collect a late charge at any
time shall not constitute a waiver of Xxxxxx's right to thereafter, at any time
and from time to time (including, without limitation, upon acceleration on the
Note or upon payment in full of the Loan), collect such previously uncollected
late charges or to collect subsequently accruing late charges.
10. Waivers. Borrowers and any endorsers, sureties, guarantors, and
all others who are, or may become liable for the payment hereof severally: (a)
waive presentment for payment, demand, notice of demand, notice of non-payment
or dishonor, protest and notice of protest of this Note, and all other notices
in connection with the delivery, acceptance, performance1 default or enforcement
of time of payment of this Note or other modifications hereof from time to time
prior to or after the Maturity Date hereof; whether by acceleration or in due
course, without notice, consent6 or consideration to any of the foregoing, (c)
agree to any substitution, exchange, addition, or release of any of the security
for the indebtedness evidenced by this Note or the addition or release of any
party or person primarily or secondarily liable hereon, (d) agree that Lender
shall not be required first to institute any suit, or to exhaust its remedies
against the Undersigned or any other person or party to become liable hereunder
or against the security in order to enforce the payment of this Note and (e)
agree that, notwithstanding the occurrence of any of the foregoing (except by
the express written release by Xxxxxx of any such person), the undersigned shall
be and remain, jointly and severally directly and primarily liable for all sums
due under this Note.
11. Set-Offs. Borrowers and any endorsers, sureties, guarantors, and
all others who are, or who may become liable for the payment hereof; severally
expressly grant to Lender a continuing lien security interest in and authorize
and empower Xxxxxx, at its sole discretion, at any time after the occurrence of
a default hereunder to appropriate and, in such order as Lender may elect, apply
to the payment hereof or to the payment of any and all indebtedness, liabilities
and obligations of such parties to Lender or any of Lender's affiliates, whether
now existing or hereafter created or arising or now owned or howsoever after
acquired by Lender or any of Lender's affiliates (whether such indebtedness,
liabilities and obligations are or will be joint or several, direct or indirect,
absolute or contingent, liquidated or unliquidated, matured or unmatured,
including, but not limited to, any letter of credit issued by Lender for the
account of any such parties), any and all money, general or specific deposits,
or collateral of any such parties now or hereafter in the possession of Lender.
12. Submission to Jurisdiction. Borrowers, and any endorsers,
sureties, guarantors and all others who are, or who may become, liable for the
payment hereof severally, irrevocably and unconditionally (a) agree that any
suit, action, or other legal proceeding arising out of or relating to this Note
may be brought, at the option of the Lender, in a court of record of the State
of Arizona in Pima County, in the United States District Court whose
jurisdiction includes Pima County, Arizona, or in any other court of competent
jurisdiction; (b) consent to the jurisdiction of each such court in any such
Suit, action or proceeding; and (c) waive any objection which it or they may
have to the laying of venue of any such suit, action, or proceeding in any of
such courts.
13. Miscellaneous Provisions.
13.1 The term "Lender" as used herein shall mean Lender, its
Successors, participants and assigns and any holder of this Note.
13.2 Time is of the essence in this Note.
13.3 The captions of sections of this Note are for convenient
reference only, and shall not affect the construction or interpretation of any
of the terms and provisions set forth in this Note.
13.4 If more than one person signs this Note, each is and shall
be jointly and severally liable hereunder; and if Xxxxxxxx is a general
partnership, then all partners in Borrower (and if Borrower is limited
partnership then all general partners in Borrower) shall be jointly and
Severally liable hereunder, notwithstanding any contrary provision in the
partnership laws of the State of Arizona.
13.5 This Note shall be construed, interpreted, enforced and
governed by and in accordance with the laws of the State of Arizona (excluding
the principles thereof governing conflicts of law), and federal law, in the
event federal law permits a higher rate of interest than Arizona law.
13.6 If any provision or portion of this Note is declared or
found by a court pf competent jurisdiction to be unenforceable or null and void,
such provision or portion thereof shall be deemed stricken and severed from this
Note, and the remaining provisions and portions thereof shall continue in full
force and effect.
13.7 This Note may not be amended, extended, renewed or modified
nor shall any waiver of any provision hereof he effective, except by an
instrument in writing executed by an authorized officer of Lender. Any waiver of
any provision hereof shall be effective only in the specific instance and for
the specific purpose for which given.
14. Waiver of Trial bv Jury. XXXXXXXXX AND LENDER (XXXXXXXXXXXX OF
THIS INSTRUMENT) HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT EITHER MY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING OR COUNTERCLAIM BASED ON THE NOTE, OR ARISING OUT OF, UNDER OR IN
CONNE~ON WITH THIS NOTE OR ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
HERETO OR TO ANY LOAN DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
BORROWERS AND LENDER ENTERING INTO THE SUBJECT LOAN TRANSACTION.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Xxxxxxxx Aerospace Technologies, Inc, a Delaware corporation
By: /s/
-------------------------------
Name: Xxxx X. Xxxxxx
Title: President
Renegade Venture Corporation, a Nevada corporation
By: /s/
-------------------------------
Name: Xxx Xxxxxx
Title: Chairman/Chief Executive Officer
AMERICAN CAPITAL VENTURES, L Page 1 of 1
Xxxx Xxxxxxxx
From: Xxxx Xxxxxx [Xxxx.Xxxxxx(C)worldnet.att.netl
Sent: Thursday, March 04, 2004 11:00 AM
To: Xxxx Xxxxxxxx
Subject: AMERICAN CAPITAL VENTURE settlement of note
AMERICAN CAPITAL VENTURES, L.L.C.
MEMORANDUM
FROM: Xxxx Xxxxxx
TO: Xxx Xxxxxx, Xxxx Xxxxxx,
DATE: February 5,2004
The amount of the repayment is $354,375.00. The current interest rate
is 1.25% or $4,429.69 monthly. Per our previous discussion, you would be willing
to repay the loan in six payments consisting of $30,000.00 paid monthly with
interest at 1.5% per month 18% per annum (the Default Rate) on the unpaid
balance.
However, the theoretical default date is 12/1/03, therefore I would
suggest that the 1.5% monthly be retroactive, the additional interest due would
then he $1,771.87 for December and January. I would suggest this be rolled into
the principal amount due. Therefore the principal note amount would be increased
to $356,146.87.
If payments of $30,000.00 monthly were made beginning 2/15/04 as
discussed, The balloon portion due would therefore be $176,146.87 on the first
day of the seventh month.
The payment schedule would be as follows:
Principal InterestPrincipal Balance
February 15, $30,000.00 $5,342.20 $326,146.87
March 15, 30,000.00 4,892.20 296,146.87
April 15, 30,000.00 4,442.20 266,146.87
May 15, 30,000.00 3,992.20 236,146.87
June 15, 30,000.00 3,542.20 206,146.87
July 15. 30.000.00 3.092.20 176.146.87
August 15, $176,146.87 N/A
Included in this extension are 712,296 warrants to purchase common
shares at 25% below market. (2 shares for each dollar invested), the warrants
will be cashless.
Regards,
Xxxx Xxxxxx
3/24/04