Exhibit 10.1
THIS PROMISSORY NOTE AND THE UNDERLYING
COMMON STOCK ("COMMON STOCK") OF THIRD
MILLENNIUM INDUSTRIES, INC. (THE "COMPANY")
HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY
REGULATIONS PROMULGATED THEREUNDER
(COLLECTIVELY, THE "SECURITIES ACT") OR
WITH THE SECURITIES AUTHORITIES OF ANY
STATE UNDER ANY STATE SECURITIES LAWS AND
ANY REGULATIONS PROMULGATED THEREUNDER
(COLLECTIVELY, "STATE SECURITIES LAWS"). AS
A CONSEQUENCE, NEITHER THIS
PROMISSORY NOTE NOR COMMON STOCK MAY BE
SOLD, TRANSFERRED, ASSIGNED, MORTGAGED,
PLEDGED, LIENED, HYPOTHECATED OR OTHERWISE
ENCUMBERED OR DISPOSED OF
(COLLECTIVELY, A "TRANSFER") EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT
THAT SUCH REGISTRATION IS NOT
REQUIRED.
EIGHT PERCENT
PROMISSORY NOTE
$300,000.00
Springfield,
Missouri
December 30, 2003
FOR VALUE RECEIVED, THIRD MILLENNIUM
INDUSTRIES, INC., a Nevada corporation with
an office at 4933 HWY 60, Rogersville, MO
65742, including its successors and
assigns, ("Borrower"), hereby promises to
pay to the order of, BARRETT
SUTHERLAND ACQUISITION, LLC, a Missouri
limited liability company ("Lender"),
the principal sum of Three Hundred Thousand
Dollars ($300,000.00) (the
"Principal Amount"), with interest on any
unpaid balance of such amount at the
rate of interest specified herein, in
lawful money of the United States of
America and in immediately available funds
in accordance with the terms hereof.
The unpaid Principal Amount Promissory Note
(this "Note"), together with all
accrued and unpaid interest hereunder,
shall be due and payable on the Maturity
Date (as defined below), unless this Note
is prepaid in accordance with Section
3. This Note evidences a loan (the "Loan")
made by Lender to Borrower in the
Principal Amount.
1.
Definitions.
1.1.
Certain Defined Terms. As used in this Note, the following
terms have the meanings indicated
below:
"Business Day" means a day other than Saturday, Sunday or other day
on
which commercial banks in Springfield,
Missouri are authorized or required by
law or executive order to close.
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"Common Stock" means the $0.001 par value common stock of
Borrower.
"Default" means any event which, with the passage of time or the
giving
of notice, or both, could become an Event
of Default.
"Default Rate" means a rate of interest equal to the Stated
Interest
Rate plus three (3) percentage points per
annum.
"Disbursement Date" means the date hereof.
"Dollars" or "$" mean lawful currency of the United States of
America
and, in relation to any amount to be
disbursed or paid under this Note,
immediately available funds or such other
funds as may be acceptable to Lender
in its sole discretion.
"Event of
Default" has the meaning set forth in subsection 6.1.
"Indebtedness" of any Person means as of the date of any
determination
thereof, (i) all indebtedness for borrowed
money or purchase money financing,
(ii) all indebtedness evidenced by a note,
bond, debenture or similar instrument
(but only to the extent actually
disbursed), (iii) the face amount of all
letters of credit and, without duplication,
all unreimbursed amounts drawn
thereunder, (iv) all payment obligations
under any interest rate protection
agreements and currency swaps and similar
agreements, (v) all indebtedness under
capitalized leases, (vi) all obligations to
pay money or assume indebtedness in
respect of the acquisition of property,
securities and other assets, (vii) all
obligations in respect of guaranties,
(viii) all obligations to purchase,
repurchase or otherwise acquire, to supply
or advance funds or to become liable
(directly or indirectly) with respect to
any indebtedness or obligation of any
Person and (ix) all refundings, renewals,
extensions or restatements of any of
the foregoing.
"Maturity Date" is defined in Section 2.2.
"Person" means an individual, a corporation, an association, a
joint
stock company, a business trust, a
partnership, a joint venture, a limited
liability company, an unincorporated
organization, or a government or any agency
or political subdivision thereof.
"Securities Act" means, collectively, the Securities Act of 1933,
as
amended, and any regulations promulgated
thereunder.
"State Securities Act" means, collectively, the securities law of
any
State that is applicable to this Note or
the Common Stock and any regulations
promulgated thereunder.
"Stated Interest Rate" means simple interest at the rate of
eight
percent (8%) per annum.
"Taxes" means any and all present and future taxes, levies,
imposts,
duties, fees,
deductions, withholdings or charges of a
similar nature imposed or assessed by
any country or any political subdivision or
taxing authority thereof (but not
including any
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income or franchise taxes of Lender),
together with any interest thereon and any
penalties with respect thereto.
1.2.
Computation of Time Periods. Unless otherwise provided herein,
with respect to the computation of periods
of time from a specified date to a
later specified date herein, the word
"from" means "from and including" and each
of the words "to" and "until" means "to but
excluding".
1.3.
Dollar Amounts. All dollar amounts used herein shall mean
Dollars.
1.4.
Construction. In this Note, the singular includes the plural,
the plural includes the singular, and the
word "or" is used in the inclusive
sense.
2. The
Loan.
2.1.
Use of Loan Proceeds. The proceeds of the Loan shall be used
for the general working capital needs of
Borrower and payment of debt.
2.2.
Maturity Date. The Maturity Date for the Loan shall be the
earlier of (i) May 28, 2004 or (ii) such
other date as the Principal Amount
shall become due and payable pursuant to
the terms and provisions of this Note.
3.
Payments.
3.1.
Funding Fee. At the times indicated below, Borrower shall
issue to or cause to be transferred to
Lender the following:
3.1.1
Contracts. Upon the execution hereof, Borrower shall
transfer to Lender all of Borrower's rights under and to all
existing contracts and/or agreements to purchase all of (i)
the stock of Barrett Trailers, Inc. and/or (ii) the assets of
J.D. Sutherland. Borrower shall deliver all documents that
are reasonably requested by Lender to effectuate such transfer
including, but not limited to, assignment instruments and all
required consents from the various selling parties.
3.1.2
Warrant. Upon the execution hereof, Borrower shall
issue a warrant to Lender for the purchase of Three Million
(3,000,000) shares of Common Stock at a price of $1.25 per
share. Such warrant shall be exercisable at Lender's option
until May 30, 2007.
3.1.3
Preferred Stock. On or before February 6, 2004,
Borrower shall obtain all required shareholder approvals
concerning the issuance and transfer to Lender of One Million
(1,000,000) shares of convertible Preferred Stock. All
required notices to shareholders in connection with obtaining
such approval shall be sent on or before January 15, 2004.
Such Preferred Stock shall have twelve (12) votes for each
share and shall be convertible at Lender's option into Twelve
Million (12,000,000) shares of Common Stock on or at any time
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<PAGE>
after May 30, 2004. Unless this Note and all amounts owed by
Borrower to Philip E. Tearney and William P. Moore, III, as
Trustee of the William P. Moore III Revocable Trust dated
October 9, 2001 are paid in full prior to such time, all
voting rights associated with such Preferred Stock shall be
fully vested in Lender on or before February 28, 2004, and the
certificates representing such Preferred Stock shall be issued
and delivered to Lender as soon thereafter as practicable.
3.1.4
DePriest Common Stock. Upon the execution hereof,
Borrower shall cause Dennis DePriest to transfer to Lender
945,000 shares of the Common Stock owned by Dennis DePriest.
(The making of such transfer shall affirm that the loan
contemplated by this Note inures to the personal benefit of
Dennis DePriest.)
3.1.5
Spencer Common Stock. Upon the execution hereof,
Borrower shall cause Greg Spencer to transfer to Lender
945,000 shares of the Common Stock owned by Greg Spencer. (The
making of such transfer shall affirm that the loan
contemplated by this Note inures to the personal benefit of
Greg Spencer.)
3.1.6
DePriest LLC Interest. Upon the execution hereof,
Borrower shall cause
Dennis DePriest to transfer to Lender all
of Dennis DePriest's interests in HIC of Mo, LLC. (The making
of such transfer shall further affirm that the loan
contemplated by this Note inures to the personal benefit of
Dennis DePriest.) There shall be delivered to Lender all
documents that are reasonably requested by Lender to
effectuate such transfer including, but not limited
