EXHIBIT
10.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED. IT MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF
COUNSEL
SATISFACTORY TO MAKER THAT REGISTRATION IS NOT REQUIRED UNDER SUCH
ACT OR
UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
SECURED PROMISSORY NOTE
$250,000
April 1, 2007
THIS
SECURED PROMISSORY NOTE ("Note") is issued pursuant to the
terms
and conditions of that certain Asset Purchase Agreement, dated as
of April 1,
2007, by and among OPTIMA TECHNOLOGIES, LLC, a Delaware limited
liability
company ("Maker"), OPTIMA TECHNOLOGIES, L.L.C., a Nevada limited
liability
company ("Payee"), and certain other parties (the "Purchase
Agreement").
Capitalized terms used herein and not otherwise defined herein
shall have the
meanings ascribed thereto in the Purchase Agreement.
1.
Obligation.
For value received,
Maker hereby promises to pay to
the order of Payee the principal sum of Two Hundred Fifty Thousand
Dollars
($250,000) together with interest (at the rate set forth below) on
the unpaid
principal balance of this Note.
2.
Maturity Date.
The term of the Note
shall be one hundred and five
(105) days, beginning with the date of this Note and ending on July
16, 2007
(the "Maturity Date").
3.
Interest Rate.
(a) Standard
Rate. The interest
rate on the unpaid principal
during the term of this Note shall be seven percent (7%).
(b) Default
Rate. Notwithstanding
Section 3(a) hereof, while an
Event of Default (as defined below) exists or after acceleration,
Maker shall
pay interest on the principal amount of all outstanding obligations
of Maker
under this Note, at the lower of (i) ten percent (10%) per annum,
or (ii) the
highest rate permitted by law.
(c)
Computations. All
computations of interest shall be made on
the basis of a year of three hundred and sixty-five (365) days.
Interest
shall accrue during each period during which interest is computed
from the
first day thereof to the last day thereof.
(d) Usury.
If performance of or
compliance with any provision of
this Note or in any instrument now or hereafter securing or
guaranteeing this
Note results in Payee receiving interest in an amount which would
exceed the
maximum rate allowed by law, the amount of such interest which
exceeds such
lawful limits shall be applied to the reduction of the unpaid
principal
balance and not to the payment of interest. In determining whether or not
the interest paid or payable, under any specific contingency,
exceeds the
highest rate of interest permitted under applicable law, Payee and
Maker
shall, to the maximum extent permitted under applicable law, (i)
characterize
any nonprincipal payment as an expense, fee or premium rather than
as
interest, (ii) exclude voluntary prepayments and the effects
thereof, and
(iii) allocate and "spread" the total amount of interest throughout
the
entire term of this Note so that the interest rate is uniform
throughout the
entire term hereof.
4.
Payment.
(a) Scheduled
Maturity Payment. The
unpaid principal balance and
all accrued and unpaid interest on this Note shall be due and
payable on the
Maturity Date.
(b) General.
All payments due
hereunder shall be made in lawful
money of the United States of America to Payee via electronic funds
transfer
directly to the account specified by Payee, or such other person or
at such
other place as Payee may from time to time designate in writing to
Maker.
All payments shall be made no later than 5:00 p.m. (Eastern Time)
on the date
specified herein. Any
payment received by Payee later than 5:00 p.m.
(Eastern Time) shall be deemed to have been received on the
following
business day and any applicable interest or fee shall continue to
accrue.
Whenever any payment is due on a day other than a business day,
such payment
shall be made on either (i) the previous business day, or (ii) the
following
business day, and such extension of time shall in such case be
included in
the computation of interest.
(c) Prepayments.
There shall be no
penalty for prepayment;
provided that any prepayment of less than all of the principal and
accrued
interest shall shorten the term of this Note and not reduce the
amount of any
installment otherwise becoming due after the prepayment date.
Any payment
made shall be applied first to interest and then to principal.
5.
Late Charge.
If any payment of
principal or interest under this
Note shall not be made within ten (10) calendar days after the
issuance of
written notice that such payment is due (the "Grace Period"), a
late charge
of five percent (5%) of the overdue amount will be charged by
Payee. Such
late charge is in addition to the standard interest that shall
continue to
accrue during the Grace Period which additional interest shall be
paid with
the late charge. The
late charge represents a reasonable sum considering all
of the circumstances existing on the date of this Note and
represents a fair
and reasonable estimate of the costs sustained and the frustration
suffered
by Payee due to the failure of Maker to make timely payments.
Maker further
agrees that proof of actual damages would be costly or
inconvenient. Such
late charge shall be immediately due and payable and shall be paid
without
prejudice to the right of Payee to collect any other amounts to be
paid or to
declare a default under this Note, or from exercising any of the
other rights
and remedies of Payee.
6.
Security.
Maker's obligations
hereunder are secured by that
certain Security Agreement of even date herewith by and between
Maker and
Payee (the "Security Agreement").
7.
Event of
Default. Any of
the
