Exhibit 10.14
TRUST DEED NOTE
$172,000.00 Dated: February 24, 2005
1. PROMISE TO PAY. For value received, Xxxx Xxxxxxx, an married man,
Xxxx X. Xxxxxxx and Penge Corp. a Nevada Corporation (hereinafter individually
referred to as "Maker" and collectively referred to as "Makers") each promise to
pay to the order' of Monitor Finance, L.C., a Utah limited liability company as
to an undivided 50% interest and First Capital Funding, L.c., a Utah limited
liability company as to an undivided 50% interest ("Holder"), at 0000 Xxxxx
Xxxxxx Xxxx, Xxxxx, Xxxx 00000, or at such other place as Holder may from time
to time designate, in lawful money of the United States of America, the
principal sum of ONE HUNDRED SEVENTY TWO THOUSAND DOLLARS ($172,000.00), or so
much of that sum as may be advanced under this Trust Deed Note by the Holder,
together with any other advances made pursuant to this Trust Deed Note
(collectively the "Principal Indebtedness"), plus interest as computed below
along with any other cost, fee or expenditure contemplated herein (the "Total
Indebtedness"). All of the terms and conditions of that certain Trust Deed, of
even date which secures this obligation are hereby incorporated and made a part
of this Trust Deed Note.
2. TERM. The term of this Trust Deed Note shall be four hundred ninety
days (492) days. This Trust Deed Note shall fully mature on July 1, 2006 (the
"Maturity Date").
3. INTEREST. The outstanding balance of the Principal Indebtedness
shall bear interest from February 24, 2005 until fully paid at a fixed interest
rate of fourteen percent (14%) per annum. Interest shall accrue daily on the
outstanding balance of the Principal Indebtedness both before and after
judgment, and shall be calculated on the basis of a 36O-day year. Interest is
compounded on a 360-day year simple interest basis by applying the ratio for the
annual interest rate over a year of 360 days (365/360), multiplied by the
outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding.
4. PAYMENTS. Monthly interest payments will be made by Makers beginning
April, 2005 and the first of the month thereafter. This Trust Deed Note calls
for a balloon payment to become due and payable on the Maturity Date. On the
Maturity Date the Total Indebtedness shall be due and payable in full. Checks
will constitute payment only when collected. If any payment (installment or
balloon) is not made within five (5) calendar days of the due date, a late
penalty equal to ten percent (l0%) of any such installment/or balloon payment
owed hereunder shall automatically be assessed. There shall be no grace period
and no further notice shall be required. In the event that a payment date falls
on a weekend, or public holiday, payment shall be due and payable the following
business day.
5. ORIGINATION AND DOCUMENT FEES. As part of the transaction, Makers
agree to pay to Holder the amount of $20,640.00 as an origination fee (the
"Origination Fee"). Said Origination Fee shall be due and paid by the Makers on
February 24, 2005. Makers also agree to pay all of the costs incurred in
documenting, recording and closing this transaction (the "Documentation
Fee"). Makers agree that both the Origination Fee and Documentation Fee may be
subtracted directly from the principal amount at Closing.
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6. XXXXXX'S EXPENDITURES. Makers agree to pay on demand any
expenditures made by Holder in accordance with the Trust Deed and this Trust
Deed Note, including, but not limited to, the payment of taxes, insurance
premiums, costs of maintenance and preservation of the collateral, common
expense and other assessments relating to the collateral, and attorney fees and
costs incurred in connection with any matter pertaining hereto or to the
security pledged to secure the Principal Indebtedness or any portion thereof
(collectively the "Holder Expenditures"). At the election of Xxxxxx, all Holder
Expenditures may be added to the unpaid balance of this Trust Deed Note and
become a part of and on a parity with the Principal Indebtedness secured by the
Trust Deed and shall accrue interest at such rate as may be computed from time
to time in the manner prescribed in this Trust Deed Note.
7. PREPAYMENT. Makers shall have the right, from time to time and at
any time, to prepay all, or any part, of this Trust Deed Note at any time or
times prior to the Maturity Date of this note without payment of any premium or
penalty. Prepaid Interest will be pro rated if this Note is paid off early.
8. DEFAULT. Makers will be in default if any of the following happens:
(a) Makers fail to make any payment when due; (b) any Maker breaks any promise
Maker has made to Holder, or any Maker fails to comply with or to perform when
due any other term, obligation, covenant, or condition contained in this Trust
Deed Note or any agreement related to this Trust Deed Note; (c) any Maker
defaults under any loan, extension of credit security agreement, purchase or
sales agreement, or any other in favor of any other creditor or person that may
materially affect any Maker's property or any Maker's ability to repay this
Trust Deed Note or perform Makers' obligations under this Trust Deed Note or any
of the Related Documents; (d) any representation or statement made or furnished
to Holder by any Maker or on any Maker's behalf is false or misleading in any
material respect either now or at the time made or furnished; (e) any Maker
dissolves (regardless of whether election to continue is made), any member
withdraws from any Maker, any member dies, or any of the members of any Maker
becomes insolvent, a receiver is appointed for any part of any Maker's property,
any Maker makes an assignment for the benefit of creditors, or any proceeding is
commenced either by any Maker or against any Maker under any bankruptcy or
insolvency laws; (f) any creditor tries to take any of any Maker's property on
or in which Holder has a lien or security interest; (g) a material adverse
change occurs in any Maker's financial condition, or Xxxxxx believes the
prospect of payment or performance of the Indebtedness is impaired; (h) Holder
in good xxxxx xxxxx itself insecure.
9. DEFAULT INTEREST RATE. Notwithstanding anything above to the
contrary, if default occurs in the payment of any principal, interest, fee or
cost, when due:, or if any Event of Default occurs hereunder, time being of the
essence hereof, if said default remains uncured for five (5) calendar days,
thereafter, all outstanding Principal Indebtedness shall bear interest at a
default rate of thirty-eight percent (38%) until paid, both before and after
judgment. If this Trust Deed Note becomes in default or payment is accelerated,
Makers agree to pay to the Holder of the Trust Deed Note all collections costs,
including reasonable attorney's fees and legal expenses incurred both before and
after judgment, including any bankruptcy proceeding or appeal, in addition to
all other sums due under this Trust Deed Note.
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10. APPLICATION OF PAYMENTS. Any and all payments by any Maker under
this Trust Deed Note shall be applied as follows: first, to the repayment of any
Holder Expenditures advanced by Holder under this Trust Deed Note; second, to
the payment of any late charges; third, to the payment of accrued interest on
the Principal Indebtedness; and fourth, to the payment of the Principal
Indebtedness.
11. EXTENSION. The time for any payment required under this Trust Deed
Note may be extended from time to time at the sole discretion of the Holder.
Makers agree to pay to Holder an extension fee in the sum of ten percent (10%)
of the Total Indebtedness then outstanding under this Trust Deed Note (the
"Extension Fee"). The Extension Fee shall be paid to Monitor Finance, L.C., at
0000 Xxxxx Xxxxxx Xxxx, Xxxxx, Xxxx 00000. In addition to the Extension Fee,
Makers further agree to pay any and all documentation and recording costs
incurred in the preparation of said extension. Both the Extension Fee and the
extension documentation costs shall be due and payable at the time the extension
is executed. Acceptance by Holder of any additional security or guarantees for
the performance of the terms and provisions contained in this Trust Deed Note
shall not in any way affect the liability of an individual Maker.
12. GOVERNING LAW. This Trust Deed Note has been delivered to Holder in
the State of Utah. If there is a lawsuit, Makers agree upon Xxxxxx's request to
submit to the jurisdiction of the courts of Utah County, the State of Utah. This
Trust Deed Note shall be governed by and construed in accordance with the laws
of the State of Utah.
13. JOINT AND SEVERAL LIABILITY. In the event this Trust Deed Note is
executed, endorsed, guaranteed or assumed by more than one person, corporation,
or any other entity, all of the parties shall be jointly and severally liable
and do hereby waive presentment, demand, protest and notice of non-payment and
of protest. Furthermore, each of the parties hereto agrees that his, her or its
obligation shall continue in full force and effect notwithstanding the death,
bankruptcy (or commencement thereof), dissolution or release of any other party
and notwithstanding the taking or release of other or additional security and
notwithstanding any waiver, amendment or modification (including, but not
limited to, extensions of time or performance) by the holder of this Trust Deed
Note as to the obligations under this Trust Deed Note or under any other Loan
Document of any of the other parties, with or without notice. Without limiting
the generality of the foregoing, each of the parties to this Trust Deed Note
agree that a separate action or actions may be brought against him, her or it.
whether or not such action is brought against any of the other parties to this
Trust Deed Note.
14. INTEREST LIMITATION. All agreements between the parties to this
Trust Deed Note and the Holder of this Trust Deed Note are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
deferment or advancement of the proceeds of the loan evidenced by this Trust
Deed Note, acceleration of maturity of the Loan, or otherwise shall the amount
paid or agreed to be paid to Holder for the use, forbearance or detention of the
money to be loaned under this Trust Deed Note exceed the maximum interest rate
permissible under applicable law. If, from any circumstance whatsoever,
fulfillment of any provision of this Trust Deed Note or of any other agreement
between the parties to this Trust Deed Note and the Holder, at the time
performance of such provision shall be due, shall involve transcending the limit
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of validity prescribed by law, then, IPSO FACTO, the obligation to be fulfilled
shall be reduced to the limit of such validity. In the event that any payment is
received by tile Holder of this Trust Deed Note which would otherwise be deemed
to by a payment of interest in excess of the maximum allowed by law, such
payment shall be deemed to have been paid on discount of principal at the time
of receipt. This provision shall never be superseded or waived and shall control
every other provision of the Trust Deed Note and all agreements between the
parties and the holder of this Trust Deed Note.
15. GENERAL PROVISIONS. Both Holder and Maker acknowledge: and agree
that any and all monies provided by Holder to Maker pursuant to the terms hereof
agree for a business purpose. Holder may delay or forego enforcing any of its
rights or remedies under this Trust Deed Note without losing them. Upon any
change in the terms of this Trust Dead Note, and unless otherwise expressly
stated in writing, no party who sign this Trust Deed Note, whether as maker,
guarantor, accommodation maker or endorser, shall be released from liability.
All such parties agree that Holder may renew or extend (repeatedly and for any
length of time) this loan, or release any party or guarantor or collateral; or
impair, fail to realize upon or perfect Holder's security interest in the
collateral; and take any other action deemed necessary by Holder without the
consent of or notice to anyone. All such parties also agree that Holder may
modify this Trust Deed Note without the consent of or notice to anyone other
than the warty with whom the modification is made.
DATED this 21 day of February, 2005
MAKERS:
/s/ Xxxx Xxxxxxx
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Penge Corporation
Its:CEO
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Xxxx Xxxxxxx, Individually
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Xxxx Xxxxxxx, Individually
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