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.
__________________________________________
SECURED PROMISSORY NOTE
Secured Promissory Note 2008A-1
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October 9, 2008
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U.S. $300,000
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Los Angeles, California
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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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