Exhibit 10.1
SECURED PROMISSORY NOTE
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$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 County, Arizona, and Renegade Venture
(NEV) 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 00/100 Dollars ($675,000.00), in lawful 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 $562,500.00. 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 (1st) 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 shall be paid on this Note immediately upon receipt of fund by the
Borrower.
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, performance, 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, consent 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 Lender, 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 be 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 by Jury. XXXXXXXXX AND LENDER (BY ACCEPTANCE 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 CONNECTION
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/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
Renegade Venture (NEV) Corporation,
a Nevada corporation
By:/s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Chairman/Chief Executive Officer
