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Secured Promissory Note

Promissory Note

Secured Promissory Note | Document Parties: EV TRANSPORTATION, INC. | EV RENTAL CARS, LLC You are currently viewing:
This Promissory Note involves

EV TRANSPORTATION, INC. | EV RENTAL CARS, LLC

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Title: Secured Promissory Note
Governing Law: California     Date: 12/22/2008

Secured Promissory Note, Parties: ev transportation  inc. , ev rental cars  llc
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THIS NOTE AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE " ACT ") OR APPLICABLE STATE LAW. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT AND APPLICABLE STATE LAW OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.

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SECURED PROMISSORY NOTE

Secured Promissory Note 2008A-1

 

October 9, 2008

U.S. $300,000

Los Angeles, California

          FOR VALUE RECEIVED , EV RENTAL CARS, LLC , a California limited liability company (" Company ") at 5500 West Century Blvd., Los Angeles, California, 90045 promises to pay to PLETHORA PARTNERS LLC , a California limited liability company (" Holder "), at 2049 Century Park East, Suite 3670, Los Angeles, California 90067, or at such other place as the Holder shall direct in writing, or its registered assigns, the principal sum of Three Hundred Thousand Dollars (U.S. $300,000.00), or such lesser amount as shall equal the outstanding principal amount hereof, together with interest from October 3, 2008 on the unpaid principal balance at a rate equal to ten percent (10%) per annum, computed on the basis of the actual number of days elapsed and a year of 365 days. All unpaid and accrued interest payable on this Note shall be due and payable on the 1st day of each calendar month, commencing on November 1, 2008 and continuing until the Note is repaid in full, with all unpaid principal, together with any then unpaid and accrued interest and other amounts payable hereunder becoming due and payable on December 3, 2008 (the " Maturity Date "). However, upon Company’s request, Holder may extend the Maturity Date to January 5, 2009 (the " Extended Maturity Date "), provided that Holder’s consent to extend the Maturity Date shall not be unreasonably withheld. All amounts owing on this Note shall be payable in arrears, with payments first applied to accrued and unpaid interest on this Note, and thereafter on the unpaid principal amount hereof. All references to Dollars herein are to lawful currency of the United States of America.

          This Note is issued in connection with a certain Secured Promissory Note and Warrant Purchase Agreement dated as of October 9, as amended, modified or supplemented, the " Note Purchase Agreement ") between Company, Parent and Holder.

          THE OBLIGATIONS DUE UNDER THIS NOTE ARE SECURED BY A SECURITY AGREEMENT DATED AS OF THE DATE HEREOF AND EXECUTED BY COMPANY IN FAVOR OF HOLDER. ADDITIONAL RIGHTS OF HOLDER ARE SET FORTH IN THE SECURITY AGREEMENT.




          The following is a statement of the rights of Holder and the conditions to which this Note is subject, and to which Holder, by the acceptance of this Note, agrees:

          1. Definitions . As used in this Note the following capitalized terms have the following meanings:

                    (a) " Guaranty " shall mean that certain Guaranty Agreement, dated as of the date hereof, executed by Parent in favor of Holder and pursuant to which Parent agreed to guarantee the Obligations of Company under this Note and the other Note Documents.

                    (b) " Obligations " shall mean and include all loans, advances, debts, liabilities and obligations existing or hereafter arising under or pursuant to the terms of this Note, including all interest, fees, charges, expenses, attorneys’ fees and costs and accountants’ fees and costs chargeable to and payable by Company hereunder and thereunder, in each case, whether direct or indirect, absolute or contingent, due or to become due, and whether or not arising after the commencement of a proceeding under Title 11 of the United States Code (11 U. S. C. Section 101 et seq. ), as amended from time to time (including post-petition interest) and whether or not allowed or allowable as a claim in any such proceeding.

                    (c) " Note Documents " shall mean this Note together with the Note Purchase Agreement, the Security Agreement, the Guaranty and the Warrant.

                    (d) " Parent " shall mean EV Transportation, Inc., a Nevada corporation.

                    (e) " Permitted Investments " shall mean (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within 180 days from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six (6) months or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-1 by Standard & Poor’s Ratings Services (" S&P ") or P-1 by Moody’s Investors Service, Inc. (" Moody’s "), or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six (6) months from the date of acquisition; (d) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States; (e) securities with maturities of 180 days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least AA by S&P or Aa by Moody’s; (f) securities with maturities of six (6) months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition; or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition or money market

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funds that ( i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

                    (f) " Security Agreement " shall mean that certain Security Agreement, dated as of the date hereof, pursuant to which Company has granted Holder a security interest in certain Collateral (as such term is defined in the Security Agreement) to secure its obligations under this Note.

                    (g) " Warrant " shall mean that certain Common Stock Purchase Warrant, dated as of the date hereof, issued by Parent to Holder.

          2. Payments . All payments of principal of, and interest on, this Note shall be made in lawful money of the United States of America by wire transfer of immediately available funds to such account as the Holder may from time to time designate by written notice in accordance with the provisions of this Note. Whenever any amount expressed to be due by the terms of this Note is due on any day that is not a Business Day, the same shall instead be due on the next succeeding day that is a Business Day (unless in the case of interest, such next succeeding Business Day would be in the following calendar month, in which case such payment will be made on the immediately preceding Business Day). This Note may be prepaid, in whole or in part without penalty, at any time prior to the Maturity Date.

          3. Covenants .

                    (a) Corporate Existence . From the issuance date of this Note (the " Issuance Date ") and for so long as the Note is outstanding, the Company shall, and shall cause Parent to conduct its operations in the ordinary course of business consistent with past practice and maintain its corporate existence.

                    (b) Limitations on Indebtedness; Liens . From the Issuance Date and for so long as the Note is outstanding, the Company shall not, and shall not permit any Parent to, (a) issue, incur, assume, maintain, suffer to exist or extend the term of any indebtedness, except for (i) indebtedness under the Note, (ii) indebtedness (A) the holders of which agree in writing to be subordinate and junior in right of payments to the Note on terms and conditions reasonably acceptable to the Holder, including expressly agreeing not to take, demand or receive from the Company, any payment of (whether as principal, interest or any other amount) or security for the whole or any part of such indebtedness, including any letter of credit or similar credit support facility to support the payment thereof, (B) which does not mature or otherwise require or permit redemption or repayment prior to or on the Maturity Date, and (C) which is not secured by any of the assets of the Company or Parent in an amount not to exceed $1,000,000 (" Permitted Subordinated Indebtedness ") (it being understood that for purposes of this Section 3(b)(ii), a guaranty, which is expressly subordinate and junior in right of payments to the Note, by any guarantor of any Permitted Subordinated Indebtedness of the Company shall not be included in the calculation of the maximum amount of Permitted Subordinated Indebtedness permitted under this Section 3(b)(ii)), (iii) the indebtedness to Toyota (the " Toyota Facility "), (iv) the indebtedness existing on the date hereof to Amalgamated Bank, Vineyard Bank or any other of the Company’s current lenders (the " Existing Facilities "), (v) indebtedness of the Company to Parent permitted by Section 3(c), or (vi) usual and ordinary

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trade debt, debt to finance the lease or purchase of new vehicles for the Company’s inventory; (b) directly or indirectly, create, assume or suffer to exist any lien on any of the collateral under the Security Agreement, or (c) redeem, retire, defease or otherwise repay or prepay in cash any principal of any new indebtedness or Permitted Subordinated Indebtedness (other than indebtedness under this Note, payments due under the Toyota Facility or payments due under the Existing Facilities), without the written consent of Holder, which consent shall not be unreasonably withheld. Payments of principal and other payments due under this Note shall not be subordinated to any obligations of the Company and shall rank senior to all other indebtedness other than (i) payments of principal and interest due under the Toyota Facility or payments due under the Existing Facilities and (ii) trade accounts payable of the Company and other indebtedness that, in each case, is preferred by operation of law. The Company will not (x) amend, supplement, modify or waive any compliance with either the Toyota Facility or the Existing Facilities or (y) permit the assignment or transfer of some or all of the rights under either the Toyota Facility or the Existing Facilities without the prior written consent (which consent shall not be unreasonably withheld) of the Holder.

                    (c) Restriction on Loans; Investments; Subsidiary Equity . From the Issuance Date and for so long as the Note is outstanding, the Company shall not, and shall not permit Parent to, (i) except for Permitted Investments (as defined below), make any loans to, or investments in, any other Person, including through lending money, deferring the purchase price of property or services (other than trade accounts receivable on te


 
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