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EXHIBIT 10.19
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS NOTE MAY
NOT BE
SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED,
WHETHER OR NOT
FOR CONSIDERATION, (A) WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE
ACT, AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION
FROM THE
REGISTRATION REQUIREMENTS THEREUNDER, (B) WITHOUT AN AGREEMENT
TO ASSUME THE
OBLIGATIONS OF THE FORMER HOLDER HEREOF UNDER THE TERMS OF THE
INTERCREDITOR
AGREEMENT (AS DEFINED BELOW) AND (C) EXCEPT AS OTHERWISE
PERMITTED BY THE
TERMS OF THIS NOTE.
SECURED PROMISSORY NOTE
[REVOLVING CREDIT NOTE]
$1,000,000.00 December 14, 2004
1. Principal Amount.
a. For value received, Trinity Springs, Inc., a Delaware
corporation
("Maker"), unconditionally promises to pay to the order of Allen
D. Petersen
("Secured Party"), the principal sum of ONE MILLION AND 00/100
DOLLARS
($1,000,000.00) or such lesser amount which shall be from time
to time owing
hereunder on account of Advances (as defined in Section 1b.
below) made by
Secured Party to or for the benefit of Maker, together with
interest on such
unpaid principal balances from time to time outstanding
hereunder at the rate
set forth in Section 2 of this Note.
b. This Note is a revolving credit facility. Secured Party
agrees, on
the terms and subject to the satisfaction of the conditions
hereinafter set
forth, to make advances to Maker from time to time (each, an
"Advance")
during the period (the "Commitment Period") commencing on the
date hereof and
continuing to the Maturity Date, at such times and in such
amounts, as Maker
shall request; provided, however, in no event shall the
aggregate outstanding
principal amount under this Note at any one time exceed ONE
MILLION AND
NO/100 DOLLARS ($1,000,000.00) (the "Commitment"). During the
Commitment
Period, Maker may borrow, repay and re-borrow principal under
this Note
subject to the terms and conditions hereunder. Whenever Maker
desires to
receive an Advance hereunder, Maker shall give Secured Party
adequate notice
of no less than two (2) business days for such request for an
Advance (an
"Advance Request"). Such Advance Request shall specify the
aggregate
principal amount of the Advance to be made pursuant to such
borrowing and the
date of borrowing (which shall be a business day). The date and
amount of
each Advance and all receipts of principal and interest with
respect to this
Note will be recorded by Secured Party in the records it
maintains with
respect thereto. The failure to record, or any error in
recording, any of
the foregoing shall not, however, affect the obligations of
Maker under this
Note to repay the entire outstanding principal amount advanced
and all
interest accrued thereon. Secured Party's records shall
constitute prima
facie evidence of the amount outstanding under this Note.
Secured Party and
Maker agree that the initial Advance under this note is FIVE
HUNDRED THOUSAND
DOLLARS AND NO/100 ($500,000.00) (the "Initial Advance"). The
Initial
Advance shall be transmitted from Secured Party to Maker on the
date of this
Note.
2. Interest. Maker agrees to pay interest on each Advance
hereunder until
the Maturity Date at an annual rate equal to eight percent (8%).
Interest on
the Initial Advance shall begin to accrue from the date hereof
and interest
on all subsequent Advances shall begin to accrue from the date
of each such
Advance. Interest shall be computed on the basis of a year of
365 days and
the actual number of days elapsed.
3. Post Maturity Interest; Computation of Interest. Any amount
of
principal and/or interest hereof which is not paid when due,
whether at
stated maturity, by acceleration or otherwise, shall bear
interest from the
date when due until said principal and/or interest amount is
paid in full,
payable on demand, at an interest rate which is equal to twelve
percent (12%)
per annum. No provision of this Note shall require the payment
or permit the
collection of interest in excess of the maximum permitted by
law. If any
excess of interest in such respect is herein or in such other
instrument
provided for, or shall be adjudicated to be so provided for
herein or in such
other instrument, Maker shall not be obligated to pay such
interest in excess
of the maximum amount permitted by law and the right to demand
the payment of
any such excess shall be and hereby is waived. This provision
shall control
any other provision of this Note or such other instrument. If
any such
excess interest shall have been paid by Maker it shall
automatically be
treated as a permitted additional prepayment of principal.
4. Payments. The principal sum and interest thereon shall be
payable as
follows:
a. The remaining principal balance together with interest
thereon shall
be due and payab
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