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 pa
