SECURED PROMISSORY NOTE
--------------------------------------------------------------------------------
PRINCIPAL AMOUNT: $70,000
HANDLING FEE: 5.0%
BORROWER: RVision, LLC
A California Limited Liability Company
LENDER: Xxxxx X. Xxxxx and Xxxxxx Xxxxx
DUE DATE: December 1, 2005
PAYMENTS: Balloon payment of $73,500 representing the
principal balance of $70,000 and handling fee of
$3,500 due on or before December 1, 2005.
--------------------------------------------------------------------------------
THIS SECURED PROMISSORY NOTE IS EXECUTED IN CONJUNCTION WITH AND IS TO BE
CONSTRUED IN ACCORDANCE WITH THAT CERTAIN SECURITY AGREEMENT BY AND BETWEEN THE
PARTIES HERETO EXECUTED ON EVEN DATE HEREOF.
1. For value received, RVision, LLC, a California limited liability
company, hereinafter referred to as "Borrower" promises to pay Xxxxx X. Xxxxx
and Xxxxxx Xxxxx, hereinafter collectively referred to as "Lender," or to order,
the principal amount of $70,000.00 along with a one time handling fee of five
percent (5.0%) of the principal balance (i.e. $3,500.00) (the "Handling Fee").
The unpaid principal balance and the Handling Fee shall be due and payable on or
before December 1, 2005.
2. Late Charge. Should the principal and Handling Fee due hereunder not
be so paid pursuant to the terms of this Note, the principal and Handling Fee
due hereunder and not paid shall thereafter bear interest at the highest legal
rate, until paid.
3. No Deductions from Payments of Principal and Interest. All payments
of principal, interest and the Handling Fee under this Note shall be made
without deduction from or in respect of any present or future taxes, levies,
imposts, deductions, charges or withholdings.
4. Events of Default. Borrower will be in default if any of the
following occur:
(a) Borrower fails to make any payment when due.
(b) Borrower breaks any promise Borrower has made to Lender,
or Borrower fails to perform promptly at the time and strictly in the
manner provided in this Note or in any other agreement or loan Borrower
has with Lender;
(c) Any representation or statement made or furnished to
Lender by Borrower or on Borrower's behalf is false or misleading in
any material respect; or
Page 1 of 4
(d) A receiver is appointed for any part of Xxxxxxxx's
property, Xxxxxxxx makes an assignment for the benefit of creditors, or
any proceeding is commended either by Borrower or against Borrower
under any Bankruptcy or insolvency laws.
5. Remedies upon Default. Upon an Event of Default or upon the
occurrence of any other event of default under the Security Agreement or any
other any other agreement Borrower has executed in conjunction with this Note,
the entire amount due under this Note, including the principal, interest and all
Handling Fees and all other sums paid or advanced by Lender to or on behalf of
the Borrower pursuant to the terms of this Note, shall at the option of Lender
(or, in the case of a Bankruptcy Event, automatically) become immediately due
and payable without further notice or demand, and Xxxxxx may forthwith exercise
the remedies available to Lender at law or in equity, as well as those remedies
set forth in this Note, Security Agreement and any other any other agreement
Borrower has executed in conjunction with this Note, and one or more executions
may forthwith issue on any judgment or judgments obtained by virtue thereof. All
of the terms, covenants and provisions contained in the Security Agreement and
any other any other agreement Borrower has executed in conjunction with this
Note are hereby made part of this Note to the same extent and with the same
force and effect as if they were fully set forth herein. The rights, remedies
and powers of Lender under this Note are cumulative and concurrent and not
exclusive of any rights or remedies that Lender would otherwise have, and may be
pursued successively or together against the Borrower, or any security for the
performance of this Note, in Xxxxxx's sole and absolute discretion.
6. Security for Obligation. This Note is secured by that certain
Security Agreement of even date ("Security Agreement") from Borrower granting a
first-priority lien in favor of Lender of that certain account receivable in the
amount of $221,433.64 payable by Raytheon Technical Services Co LLC to Borrower
(the "Account Receivable") as more particularly described in the Security
Agreement executed concurrently herewith. Borrower shall have obtained prior to
or concurrently with the execution of this Note the agreement and consent of any
and all senior secured lien holder to subordinate any security interest in the
Account Receivable, to Xxxxxx's first-priority lien. Xxxxxxxx further agrees to
make all filings and take such other action necessary or desirable to protect
and perfect such the first-priority lien of Lender in the Account Receivable,
including without limitation the filing of such UCC-1 financing statements in
favor of the Lender and the filing of any such UCC-2 Financing Statement
Amendments reflecting the subordination of all senior lien holders.
7. Usury Savings Clause. If, by the terms of this Note, the Borrower is
at any time required or obligated to pay interest at a rate in excess of such
maximum rate, the rate of interest under this Note shall be deemed to be
immediately reduced to such maximum rate and interest payable hereunder shall be
computed at such maximum rate and the portion of all prior interest payments in
excess of such maximum rate shall be applied to reduce (and shall be deemed to
have been payments in reduction of )the principal balance of the Note.
8. Notices. Any notice, payment or other communication required or
permitted hereunder shall be expressed in writing and sent by certified or
registered mail, return receipt requested, to their respective parties at the
following addresses, or at such other addresses as the parties shall designate
by written notice to be the other:
If to the Lender to:
Xxxxx X. Xxxxx
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Page 2 of 4
Xxxxxx Xxxxx
c/o Eagle Lake Incorporated
00 Xxxx Xxxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
If to the Borrower to:
RVision
Attn: Xxxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
9. Attorneys Fees. Xxxxxxxx agrees that if any legal action is
necessary to enforce or collect this Note, the prevailing party shall be
entitled to reasonable attorney's fees in addition to any other relief to which
that party may be entitled. This provision shall be applicable to the entire
Note.
10. Governing Law. The terms of this Note shall be governed by and
construed under the laws of the State of California, without reference to such
State's principles of conflicts of law.
11. Jurisdiction.
(a) Consent to Jurisdiction. The Borrower, and by acceptance
of this Note, the Lender, each irrevocably and unconditionally (i)
agree that any suit, action or other legal proceeding arising out of
this note may be brought in Superior Court of California, or if such
court does not have jurisdiction or will not accept jurisdiction, in
any court of general jurisdiction in the county of Santa Clara,
California; (ii) consents to the jurisdiction of any such court in any
such suit, action or proceeding; and (c) waives any objection which
such party may have to the laying of venue of any such suit among or
proceeding in any such court.
(b) Service of Process. The Borrower, and by acceptance of
this Not, the holder each irrevocably consent to the service of any
process, pleading, notices or other papers by the mailing of copies
thereof by registered, certified or first class mail, postage prepaid,
to such party at such party's address as set forth in the purchase
agreement, or by any other method or permitted under California law.
(c) Waiver of Jury Trial. The Borrower and, by acceptance of
this Note, the Lender each irrevocably waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury
in any legal proceeding directly or indirectly arising out of or
relating to this note or the transactions contemplated hereby (whether
based on contract, tort or any other theory).
12. Method of Payment. Principal and interest shall be payable in
lawful money of the United States. Notwithstanding anything contained herein to
the contrary, the amount of interest payable under the terms of this Note shall
in no event exceed the maximum amount of interest permitted to be charged by law
at the date of execution hereof.
13. Voluntary Execution. Xxxxxxxx acknowledges that Xxxxxxxx is freely
and voluntarily executing this Note after having been advised to seek separate
independent counsel of Xxxxxxxx's choice for advice regarding the obligations of
Borrower created by this Note and any other legal rights pertaining to this
Note. Borrower has either been apprised of all relevant information and legal
Page 3 of 4
rights by legal counsel of his own choice or had voluntarily chosen not to seek
the advice of independent counsel for advice relating to this note. Borrower in
executing this note does not rely on any inducement, promises or representations
by the Lender.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Secured Promissory Note
as of November 3, 2005.
BORROWER
RVision LLC
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx
Title: CEO
Page 4 of 4
