20080519Alberdi Note 2008.pdf

2085780564.12:16:57p.m. 05-16-2008 1/13
HAEMMERLE & HAEMMERLE, P.L.L.C.
400 SOUTH MAIN STREET, SUITE 102
P.O. BOX 1800
H A I LEY, I D A H 0 833 33 Á-r-L - Ë -08 ..0 f
VOICE [phone]
FAX [phone]
FACSIMILE TRANSMITTAL SHEET
TO:FROM:
TERRY CARLOCK Frit X. Haemmerle
COMPANY;DATE:5/61
TOTAL NO. OF PAGES
INCLUDING COVER:
FAX NUMBER:
[phone]
PHONE NUMBER:SENDER'S REFERENCE
NUMBER:
Israel Ray
Contains: Signed copy of Promissry Note wi Eric Alberci
~=co
(')ú)
;p:x
ë5..ui0'
WARNINGTHIS DOCUMENT is A PRIVILEGED COMMUNICATION
INTENDED SOLELY FOR THE BENEFIT OF THE
ADDRESSEE.
2085780564 12:17:03 p.m. 05-16-2008 2/13
..
COpy ORIGINAL
PROMISSORY NOTE
FOR VALUABLE CONSIDERATION RECEIVD. Maverick R. Ray. a.k.a. Israel Ray
(herein "Maker"). promises to pay to Eric Alberdi ("Payee"). the principal amount of $100.00.00.
with interest at the rate of fourteen (14%) per annum computed from the date of this Note. payment
of principal and interest to be made in lawful money of the United States. a~ set fort herein.
1. Payment Schedule. Maker shall distribute to Payee equal monthly installments of
$ i ,874.00. representing principal and interest. for over a period of seven (7) years. or any other
sums ali the paries agre. due on the first (I sl ) day of each month and continuing thereafter until all
principal and interest is paid in fulL. The first installment of interest and principal shal be due on
May I. 2008, and all payments shall be made pursuant to the attached amortization, Exhibit I.
2. Additional Prvisions Regaing Payment. The payment of the obligation set
forth above shall be governed by the following provisions:
a. All payments shall include principal and interest.. The principal balance of
the note, $100.00. along with interest. shall be paid on March 20. 2015.
b. Maker may not prepay this Note within the first two (2) years of the Note.
without penalty. If the Maker prepays within the first two (2) year of the Note, then the maker
shall pay. in addition to any principal due, $25.00. less any interest payments made to date of
prepayment. After the first two (2) years. Maker may pay the Note without any penalty; provided.
however, that all accrued but unpaid interest on the remaining principal balance as of the date of
such prepayment shall be paid at the time of such prpayment. If Maker makes a parial
prepayment, Maker shall continue to make payments in accordance with the payment schedule ali
set fort above until all principal and interest is paid in fulL.
c. In the event that any installment of principal and/or interest payable
hereunder is not paid when due. then in addition to all other rights set fort herein. Payee shall have
the right. commencing ten (10) days after the due date for such payment. to collect a late fee equal
to twenty-five percent (25%) of the delinquent payment. such late charge being based on Payee's
good faith evaluation of the probable extraordinar cost to Payee of such delinquency. The right to
collect such late fee shall be in addition to all other rights granted to Payee hereunder.
3. Security for NotelNotications.
a. Security for the Note is a Lock Box Agrment. contained in Idaho Public
Utlities fie number A TL-E-08-1. The segrgated account and related disbursements set forth under
the Lock Box Agreement wil not become operational except mider default by Maker. If default
occurs. the holder shall notify the Maker and IPUC in writing. The notice to the Maker and IPUC
shall be provided at least fourteen (14) days in advance of the establishment of the segregated
account referenced in the Lock Box Agrement. Payee acknowledges that no liens. att~men~r
levies wil be made against the ai,sets of Atlanta. Notices shall be sent to: r __ æi
-i.C:J
ff:E:.:(l;;;PROMISSORY NOTE - i ú)
ë5...ui00
2085780564 12:17:21 p.m. 05-16-2008 3/13
Idao Public Utilties Commission
P.O. Box 83720
Boise. ID 83720-0074
Maverick R. Ray
II 140 Chicken Dinner Rd.
Caldwell, ID 83607
b. In addition, and outside of the security contained in the Lock Box
Agreement, Israel Ray, personally guarantees the note, and understands that the Payee may seek
reimbursement for money owned form the Maker's personal and/or real property
4. Events of Deault and Accleration. At the option of Payee, the unpaid principal
balance and all acrued but unpaid interest and any other charges owing on this Note shall become
immediately due and payable upon the occurrence at any time of any of the events of default listed
herein and after Maker ha" failed to cure any such default within thirty (30) days of Payee's giving
written notice to Maker of such default:
hereunder.
a. Failure to make any payment when the same beomes due and payable
b. Failure in the due, prompt and complete performance and observance of any
other covenant, agreement or obligation of Maker contained herein or any other securty agrement
given to secure this Note or in any other agreement or document related to this Note.
c. The entry into any contrct for the sale, exchange, conveyance or transfer of
any kind of any stock in Maker or for substantially all of the assets of Maker, without due notice to
Payee and without the prior written consent of Payee to such sale, exchange, conveyance or trnsfer.
d. The fiing by or against maker of a petition under the Banptcy Reform
Act, as amended or recodified from time to time, or any other federal act or state law relating to
bankrptcy, insolvency or relief for debtors from their obligations, whether now existing or
hereinafter enacted.
e. The filing by or against Maker of a petition seeking the liquidation or
dissolution of Maker or the commencement of any other proedure to liquidate or dissolve Maker or
the occurence of any event, condition or circumstance which causes the liquidation or dissolution
of Maker.
f.
Maker's creditors.
The general assignment by Maker of the assets of Maker for the benefit of
PROMISSOR Y NOTE - 2
2085780564 12:17:34p.m. 05-16-2008 4/13
g. The sequestration or attachment of or any levy or execution upon any
substantial portion of the a~sets of Maker.
i. Maker warants that the person of "Israel Ray" and "Maverick R. Ray" are
the same person, and that if any facts show that "Isral Ray" and "Maverick R. Ray" are not the
same person. and are in fact two (2) separte peple, then Maker is in default.
5. Miscellaeous Prvisions.
a. Waiver of Prsentment. Proest and Deman. Maker hereby waives
presentment, protest and demand, notices of protest, demand, dishonor and non-payment of this
Note and all notices of ever kind. No single nor parial exercise of any power hereunder of under
any other agreements given as securty for this Note shall preclude other or furter exercise of any
other power. Payee shall at all times have the right to proeed against any portion of the security
held herefor in such order and in such manner as the holder may deem fit, without waiving any
rights with respect to any other security or any other agrements related to the transaction.
b. Attorneys' fees. If this Note is not paid when due, whether at maturity or by
acceleration, interest upon the total amount due shall accrue interest at the rate of twenty-five
percent (25%) per anum, the Maker agres to pay all reasonable costs of collection, including but
not limited to, reasonable attorneys' fees, including thugh appeal, and reasonable expenses
incurred in connection with the protecion or realization of the collateral or enforcement of any
guaranty, incurred by Payee on account of such coHection, whether or not suit is fied hereon.
c. No Waiver by Payee, No delay or omission on the par of Payee in
exercising any rights hereunder or in any other agreements shall operate as a waiver of any such
rights hereunder or under said agrements.
d. Assignment. This Note or any interest or obligation of Maker hereunder
shall not be a'isigned in any maner by Maker without the prior written consent of Payee.
e. Applicable Law. This Note ha'i been executed and delivered in the State of
Idaho and is to be governed by and construed in accordce with the laws of the State of Idaho.
f. Notice. Any notice required to be given under this Note shall be in writing
and may be given to the receiving pary by (1) personal delivery or by (2) mail. registered or
certified, retur receipt requested, postage prepaid, addrssed to the address of the receiving party as
set fort herein. Any notice shaJI be deemed to have been given as of the date of delivery or the
date of mailng.
g. Binding Effect. The paries agr that the provisions of this Note shall be
binding upon and inure to the benefit of the heirs, personal representatives. administrators,
successors and a~signs of the paries.
PROMISSORY NOTE - 3
2085780564 12:17:49p.m. 05-16-2008 5/13
h. Entire Agreement. The paies acknowledge that the terms of this Note may
vary from the terms contained in any other preliminary agrements, written or oral, made prior to
the execution of this Note and may vary from any negotiations between the parties prior to the
execution of this Note. The paries agree that the terms, covenants and conditions of this Note shall
supersede ali such prior negotiations and agreements, and that there are no other agrments not
contained in this Agrment, and that this Agrement shall be and is the final expression of the
agreement of the paries and shall control. No modification of this Note shall be valid unless in
writing and executed by the parties to the Note.
i. Severance and Validity. In the event any provision of this Note or any par
thereof shall be determined by any Court of competent jurisdiction to be invalid, void or otherwise
unenforceable, the remaining provisions hereunder, or pars theref, shall remain in full force and
effect, and shall in no way be affected, impaired, or invalidated thereby, it being agree that such
remaining provisions shall be construed in a maner most closely approximating the intention of the
paries with respe to the invalid, void or unenforceable provision or par thereof.
j. Joint and Several Liabilty. If ther ar more than one Maker and Payee as
paries to this Note, the obligations and agrments of each of them shall be joint and severaL.
k. Prparation of Agrements. No presumptions shall exist in favor of our
against any pary as a result of the drafting and preparation of this Note or any other agreement or
document related to this loan transaction.
i. TIME OF ESSENCE AN PERFORMANCE OF AGREEMENTS. TH
PARTæs AGREE THAT TIME AND THE PROMPT PERFORMANCE OF EACH AND
EVERY TERM, COVENANT AND CONDITION OF THIS NOTE AND ALL OTHE NOTES
AND DOCUMENTS RELATED TO THIS LOAN TRANSACTION IS MATERIAL AND OF
THE ESSENCE. PERFORMANCE MENS COMPLIANCE THAT IS FULL AND TO THE
LEITER OF THIS AGREEMENT AND ALL OTHER AGREEMENTS AND DOCUMENTS
RELATED TO THIS LOAN TRASACTION; SUBSTANTIAL COMPLIACE IS NOT AND
SHAL NOT BE SUFFICIENT.
sr
A IN WITNESS WHREOF, This Prmissory Note is executed as of the / -day ofdf'l¿ ,2008. / ) I /Jif(-~¡(£~~
MAVERICK R. RAY. ~â. ISRAEL RAY
PROMISSORY NOTE - 4
2085780564 12:18:04p.m. 05-16-2008 6/13
STATE OF IDAHO, )
) ss.County of Canyon. )
On this .9tl day of ~ , 2008, before me, the undersigned, Notary
Public in and for said State, personally appeared Maverick R. Ray, a.k.a. Israel Ray, known to me to
be the person whose name is subscribed to the within instrument. and acknowledged to me that he
executed the same.
IN WITNESS WHREOF, I have hereunto set my hand and affxed my
offcial sealthe day and year in this certificate first above written.
PROMISSORY NOTE - 5
2085780564 12:18:11 p.m. 05-16-2008
EXHIBIT 1
7/13
2085780564 12:18:13 p.m.05-16-2008 8/13
Prinei",1 I 5/lIOOO.o
Inl._R...I 14.00r-T.nn 84
Payment L__!yi7'~
Tot.1 R'""ymenl 51~1,4i6.IO
To..llnl....1 551.416.0
liriQ!I "'&Înqll1!'.!n(ÍI I"'y.!m!¡nlem!.lPJ1jQ! I'ril1dj!l'oi:!!!'rLndl!!!!.la~TglolJ.Y"!'_nls Tot!.In!9t.tl l'Qla!.rincl!l1SIOO,r1MI.JO SI,IlMO $1,166.67 5707..13 $9Q.292.h7 S,1.S74JXl 51.1"'.b7 S71l7..i~5/1/08S99,29L.67 51,074.00 $1,158.41 $7IS.59 $9K,577.06 53,748.00 S2,.1L.'.0I $1042292 6/1/08$'l,m.06 51,874.00 $1,150.7 m3.94 597,853.14 $,.b2.00 53,475.15 si,I-l.i 7/1/08597,853.14 51,874.00 51,141.62 $73L.38 $9,120.76 57,4%.00 54,616.17 52,89.24 8/1/085Q7,llO.76 SI.R74.00 51, 13.06 5740.93 $96,37'.1l 59,370.01 $5,749.64 $.1,b20.1'9/1/08$%,37'.1l $1,874.00 51,124.43 $m.57 595,630.27 $11,244.01 56,874.27 54,36.73 10/1/087S9S,30.27 $1,874.00 $1,115.69 $75.31 594,87195 $13,lI.Ol $7.98.%$5,128.05 11/1/088$9..l.9S 51,874.00 $1,106.8 5767.16 59,104.79 514)92.01 59,09.80 55,89.21 12/1/089594,104.79 51,874.00 $1,097.89 $776.11 $93.328.68 516,86.01 510,194.69 $6,671.32 1/1/0910593,32.6 51,874.00 51,08.83 5785.17 $92.543.51 518,74001 511,28352 57,4';.49 2/1/0911592,543.51 51,874.00 $1,07.67 $79.33 $91,ì49.19 $20,614.01 512,.1.20 58,2~.81 3/1/0912591,749.19 51,874.00 $1,070.41 SSOJ.59 $9,945.59 $22,-l.01 $13,433.61 59,054.41 4/1/09IJ5',945.59 $1,874.00 $1,061.03 SS12.97 59l,I1.62 524,362.02 514,49-.64 $9,867.18 5/1/091459013.62 51,874.00 51,051.5 $82.45 $89,310.17 526,l..lJ2 $15,546.18 510,689.83 6/1/0915$l,31O.17 51,874.00 51,/),1.95 $.J2.05 S8,47ll.2 528,110.02 $16,'8l.14 SII,,21.R 7/1/0916SS,478.12 $1,874.00 $1,032.24 SS1.76 $87,63..6 529,98.02 $17,620.38 $12.363.64 8/1/0917$87,636.36 51,874.00 51,022.42 $851.58 5878.79 SJI,858.02 $18,642.81 513,215.21 9/1/091858,784.79 51,874.00 SI,OIL.49 SBl.51 SS5,923.l SJJ,732.02 $19,655..514,076.73 10/1/0919$85,92J.27 $I,ll4.00 $1,00.44 581.';$85,051.71 535,60602 520,657.73 $14,94.29 11/1/0920$85,051.71 51,874.00 5992.27 S81.73 $8,109.98 SJ7,4I.02 521,bS.00 515,B30.02 12/1/0921$8,169.98 $1,84.00 5981.98 $B.02 $83,27796 SJ9_1S4.02 522,631.99 510,722.04 1/1/10ii$83,277.96 $1,874,00 $97158 5902.42 $8375.54 541,228.03 $23,6056 517,624,46 2/1/1023SI375.54 51,874.00 $91.05 $912.95 $81,462.58 543,102.03 $24,56.61 518,537.42 3/1/1024$81,46.5 $1,874.0 5950.40 5923.60 $l,538.8 54,976.03 S25,515,D1 $19,461.02 4/1/1025$l,53898 51,874.00 $939,62 59:1.38 $79.6.6 S4,85.D3 $26,54.63 520,395.40 5/1/1026579.6.6 $1,874.0 5928.72 595.28 $78,059.32 $4,724,03 $27,38.35 m,.l.68 6/1/1027578,659.32 5i.74.00 5917.69 5956.31 577,703.01 55D,5903 S28,30U)'522,29699 7/1/1028$17,70l.Dl $1,874.00 590.54 597.47 $76,735.54 552,47103 52.207.58 $23,26.46 8/1/1029576,735.5 51,874,00 $895.25 5978.75 575,756.79 554,34 s.,io2.82 $24,243.21 9/1/1030575,7';.79 SI,84.00 SB.83 $9.17 $74,766."2 556,iiO.l $30,986.65 525,ll1.38 10/1/1031574,766.6 51,874.0 $87228 51,001.72 $73,764.8 $58.09.04 SJI,B58.93 si..,235.11 11/1/1032573,764.89 51,874.00 SB59 51,013.1 572,751.48 $59,96.04 $32,719.52 527,24852 12/1/10335727;1.48 51.874.00 SB.77 51,025.23 571,726,25 $61,842.04 $33.56.29 $1i:t2i3.iS 1/1/1134571,726.25 51,874.00 $836.81 51,037.19 570,68.05 SbJ,16.04 534405.0'$29.310.95 2/1/11.l5 S70,1i.1 51,84,00 $S24.71 $1,049.30 569,639.7ó $65,59.04 53S,æil SJO,360.24 3/1/113656,639.76 51,874.00 SSlL.-L 51,IJ154 $6,578.22 Sb7,46.04 536,042.6 UI,421.78 4/1/1137$6,5722 $1,874.00 $SOO.OS 51,073.92 $67,504,:1 5b,.io.,lI 536.842.:1 $3.i4tl~.7'O 5/1/113lSt7,5lll.:I 51,874.10 $;87.55 51.086.45 So,.17-S5 $71.212.04 $.1¡,tii9.~9 S3.L.5.~1.15 6/1/1139$h,4 i 7.85 $1,874.00 5774,87 51.lJ.Ll St5.JI8.7~$73,OSb.tJ5 5."10404.77 534,¡,i.s 7/111140565,316.72 SI.ll4.00 $702.05 $1.III.9S So.2t1".;"$7-l.%Q.ú5 5.19.1"".s2 ~3~.¡Qli3 8/1/1141Sn,21J.77 51,ll7.i.OO $749.~51.124.92 :;3,i18 1,';5 $70,831.05 $39,915.90 5.1b.9IS.15 9/1/114256.1,OfI.S5 51.S74.00 5735.95 .1.138.05 $61,94380 );S,7L1S.Ù5 $4Ù,651.8,$38.l156.;W 10/1/1143SbI.''I3.O Sl,ô7'l.OO 5722.68 51,151.2 $00.792.48 SB,582.l15 $41,374.53 5..9,207.52 11/1/1144$h,192.48 51,874.00 S7().25 5UM,?6 $~,627.73 582.450.115 $42,1l3.78 $40,372.7 12/1/11.l;S,5Q.b2i.73 51,874.00 $6a5.6 51,178.34 SSS,449..l 58.330,05 S42,77,43 S41.:-5û.ò2 1/1/12465Si,'¡9.38 SI,b74.00 $61.91 51,192.19 557,257,29 58.204.0;S43.61.34 $4i,742.71 2/1/1247557.2.'7..51,874.00 56.00 51,lO.00 "'õ,iJ1.9 $8,076.05 $4,129.34 543,946.71 3/1/12-I 556,0'1.9 $1.874.00 Sb53.93 51,220.07 ""1.631.22 SS,952.1l $+,783.iS S45,1,;.78 4/1/124aSS4.SJI.Z2 $l.874.00 :;39.;-$1,234.30 $sJ.5%.~2 591,810.1J S45,422.97 S4,411.1.ùS 5/1/12
Page 1
2085780564 12:18:31 p.m.05-16-2008 9/13
5(1 ii"'l..:tlf"lJl $1,/ìï4.t)1 $ó2,.J(SI,2~H.iU "2,3.1K21 $9.i,~oiJ.I'"'-b,ll-l8.27 i-Î,b:;I.79 6/1/1251,52.341,21 SI,874oo $610.73 51,26327 $.'I.ff.94 )9~.574.On 54,6;;.00 S-1S,915.iJ 7/1/1252551,'16."4 $I~74JlO S595.99 $1.17S31J ~o,8116.91 S97,.l~.rJt $47.2ó-.'19 !oi:O,N3.m 8/1/12~3 $l9..ì(",.~.,"J.Si'l,1I0 S'i1.18 $1,2~2.92 $.,51~.UL S99,.122.116 $O7,S.16.LL7 $51.-P:l.99 9/1/1250S4,51-1.111 SI."~.00 5...ILO Si,,lI.iJU Wi,iOf.OI $IUI,I%.llb $.,4112.117 552,79.1.'1 10/1/12S5$47.21...ul $1.ö-1.00 $!i50.74 $1,.12.1.6 S-I5,ii2.74 $1t1,1l70.i16 $o8,052.S1 ,"1,117.26 11/1/1256$05,112.74 $1,874.00 S'35.3 51,138.70 54,54.04 SI04,944.Oò 549,48.10 S55.45,.96 12/1/1257$4, 54.04 o;l,87~.OO S519b8 SI,354.32 $03,169.72 5106,818.07 S"O,007.~9 556,810.26 1/1/1358~3,169.72 S!87l00 5"03.81 51.70.12 S41,.~J~l.l'A)SIlB,692.07 550,'11..7 ,58,180.-1 2/1/13:;9 !o1,Slu.bO 51,';74.00 $4790 SI,31l.11 S4,4.l.~9 S 110,56.07 5"0,9'.56 559,5651 3/1/1360S4".4J1.9 ".Hi.lI1(S-7li2 51.~02.2S 5.19,03UI $~ 12.~40.07 S,I.-lii.S $n1,%S.79 4/1/1361539,031.21 51,87l00 $055.36 SI.418.64 S37,Ó12.Ó!SII4.14.117 S51,026.5 $62..187.2 5/1/1362'!\7,f:12.:i."l $1,874.00 $oJl.SI SL043'.19 S1n,177.19 SII6.ISH.07 552,365.46 $61,822.61 6/1/1363S.lb,I77.39 51.874.00 S422.07 SI,-I51.9)s.I,72.46 S1I8,0ò2.07 S52.787.,l $6'i.27~5-1 7/1/1364$I4,~2,..j Sr.S74.io S-1l.JJ Sr,.l6A.ll7 $11,25650 $ll'J,lJ,'\.U7 553.IQ2.""SN.74J.41 8/1/1305$.1).2:"'.59 Sl,il~.'iu S3I7.99 SIAM.OI $3i.7058 SI21,Hil.US '¡5J,'i0.6b $6,229.-2 9/1/1366'¡31,770.'I Sl,H7~.00 $370.66 SI,ó03.4 $30,2.,7.24 512.1,68.1lS S'J,9'i1.31 $&,732.76 10/1/13.,7 530,2&7.24 51,874.00 $.153.12 SI,520.88 S28,746.35 Sm,55B.08 554,304.3 S71,2.U.,11/1113ó8'¡28,746.15 $1,H74.00 $3J~.37 S1,531.63 $Z7.07.i3 5127,-.12.08 554,b39.i1i 572,792.27 12/1/1369527,207.73 SI.174.00 5317.42 SI,5.'6_58 S25,6' 1. 5 $129,.l.08 $."',9'i7.23 574,3-.85 1/1/1470525,65l.5 '¡1,l-1.00 5299.26 51,574.74 524,076.41 SI31,IBO.08 S5',256.49 S75,92J.59 211/1471$24,076.1 51,874.00 S2l.8 51,59.1.11 522,483.10 513.1,054.08 ss~,537,J8 $77,516.70 3/1114i2'¡22,-IIIJ.30 5I,1l4.00 5262..11 $1.611.70 520,871.60 513-,928.08 5''i,7'J9.09 $79,128.-1 4/1/1473$20,871.60 SI,B74.00 S24.1.5O SI,6:1.50 S19,241.1O $136,802.08 556,U43.19 580,7'1.'l 5/1/1474519.2-11.10 51,87uJO 5224.48 $1.69.52 $17,591.58 S13I,676.09 S56,267.ti7 $62.408.42 6/1/1475$17,591.58 SI,87-1.00 $205.24 51,66.77 SI5,922.82 $1-10,550.09 556,47l90 $14,07.18 7/1/1476SI5,922.82 $I,B74.00 SI85.77 SI,68 $14,23'1-'8 S142,424.09 $56,658.67 $1',765.42 8/1/1477SI-I,234.58 SI,S-1.00 SLÓÓ.07 $1,707.93 SI2,526.65 $I-I,2'8.09 Sõ6,82-1.7-1 $87A73.35 9/1/1478Sr2,526.t':;$IN4.00 51-1.14 SI,727.86 SI0.79.79 $/-16.1721)9 5'0,070.88 '\'l,201.21 10/111479io i 1).79~.79 $1,874.110 $125.99 SI.7-1.02 S9,1l50.78 $148,04.09 $.,7,iJ.87 S'J(,949.22 11/1/1480$9.0S11.76 $1,874.00 510'.59 SI,768.41 S7,282.37 S149,920.0'S,7,202.-1 $92,717.63 12/1/14BI$7,2~2.37 $1,874.00 $84."6 51,76.04 $5,493.33 SI5I,79.09 $.,7,287.42 S94,506.67 1/1/15B2$';'49.l.33 SI,S4.OQ $64.09 51.80'.01 S3,683.2 SI53,ó6.10 $57,.151.51 5"6,31&.58 2/1/158353.68.42 $1,874.00 $42.97 SI,8I.03 SL,8.J $155,52,10 S57,39.49 $98147.61 3/1/158451,lIl.39 SI,S-1.00 $21.61 SI,852.39 So.oo SI57,-I16.10 S57,416.10 5100,00.00 4/1/15
Page 2
2085780564 12:18:44p.m. 05-16-2008 10/13
ORIGINAL
LOCK BOX AND SECURITY AGREEMENT
This Lock Box and Security Agreement (the RAgreementM) is effective
AeL/L. 9 -r , 2008, and is entered into between Atlanta Power Company, Inc"
an Idaho Corporation ("Obligor") and Eric Alberdi, a sole proprietor (together with its
successrs and assigns, "Secured Part"),
RECITALS:
A. On _, 2008, in Case No. ATL-E-08-1, the Idaho Public
Utilities Commission entered Order No. , a true and correct copy of which is
attached hereto as Exhibit A (the"IPUC Order").
B. The IPUC Order, among other things, authorized the execution of a
promissory note in the amount of One Hundred Thousand and 00/100ths Dollars
($100,000.00) payable to the order of Secured Part that is to be secured by a Lock BoxAgreement. This Agreement is the Lock Box Agreement referenced in the IPUC Order.
C. In connection with this Agreement, and as required by the IPUC Order, the
Obligor executed a Promissory Note in favor of Secured Part dated April 9, 2008, in the
principal amount of One Hundred Thousand and 00/100ths Dollars ($100,000.00) (the
"Promissory Note").
AGREEMENT
NOW THEREFORE, for valuable consideration, and in reliance on the recitals
above, which the parties acknowledge are true and correct, the parties hereby agree as
follows:
1. As collateral security for the prompt and complete payment and performance
when due of all of the obligations set forth in the Promissory Note, and subject to the
terms of the IPUC Order, the Obligor hereby pledges and grants to Secured Part a
continuing security interest in and lien on (the "Collateral"): all of the Obligor's accounts,
whether now owned or hereinafter acquired, and any and all additions, accessions,
replacements, and substitutions thereto, and all proceeds thereof. The Obligor shall
execute any and all UCC-1 Financing Statements required by Secured Part to allow
Secured Part to perfect its lien in the CollateraL. Obligor further represents and warrants
that upon the filng of any such financing statement at the office of the Idaho Secretary of
State, the Secured Part shall have a valid lien on and security interest in the CollateraL.
2. This Agreement incorprates by reference all of the provisions of the
Promissory Note and the IPUC Orcer.
3. In the event of an occurrence of a default under the Promissory Note (an
"Event of Default") and following the provision of written notice (the "IPUC Notice") to the
Idaho Public Utiities Commission of such Event of Default as required by Section 3 of the
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Promissory Note, the Secured Part may exercise all of the rights and remedies of a
secured creditor under the provisions of the Uniform Commercial Code, whether at law, in
equity, or otherwise. Furthermore, fourteen (14) days from the date of the ¡PUC Notice,
the Obligor shall: (A) establish a segregated account (the "Segregated Account'l) at a
bank that is acceptable to the Secured Part in its sole discretion; (B) execute a control
agreement ("Control Agreement") required by the Secured Part in its sole discretion, but
subject to the ¡PUC Order, which among other things, provides that the Secured Part has
control over the funds in the Segregated Account for purposes of perfecting the Secured
Part's security interest in and lien on such funds; and (C) within one business day of
Obligor's receipt thereof, deposit all of the payments received from the Obligor'S
customers directly into the Segregated Account.
4. Commencing on the fifteenth (15th) day of the first month following the date
of the IPUC Notice, and ending when all amounts owed and under the Promissory Note
are paid in full, Obligor shall make, or shall direct the bank holding the Segregated
Account funds to make, all monthly disbursements from funds held in the Segregated
Account as required by the IPUC Order, as follows:
4.1. First, a $2,100 reserve will be maintained in each and every month for
the purpose of making the payments due (by the due date) for applicable insurance,
propert taxes, Forest Service special use permits, IPUC fees, and the minimum income
tax payable by Obligor;
4.2. Second, an additional $1,100 reserve wil be maintained in each and
every month for the purpose of paying the monthly contract labor associated with meter
reading, biling, maintenance and duties necessary to operate the utilty. Management
fees are excluded from this reserve;
4.3. Third, an additional $375 wil be reserved each month until a balance
of $4,500 is accumulated to pay the maintenance costs necessary to maintain electrical
service to customers and office supply expenses necessary to bil and process customer
receipts;
4.4. Fourth, an additional $375 will be reserved each monthly until a
balance of $4,500 is accumulated to pay costs to operate the back-up generator of the
utilty, if needed;
4.5. Fift, pay the monthly installment on the Promissory Note by the due
date established; and
4.6. Finally, the remaining balance of the Lock Box funds is available to
Atlanta Power for payment of other operating expenses.
4,7, Relation to Reserves in Lock Box Agreement in Case No, ATL-E-04-
.L The parties understand that there is a prior Lock Box Agreement in Case No. ATL-E-
04-1. That Lock Box Agreement specifies certain reserves for certain purposes. It is
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intended that this Agreement was not intended to add additional reserves to reverses
already stated under the lock Box Agreement in Case No. ATL-E-04-1. For example, the
lock Box Agreement in Case No. ATl-E-04-1, paragraph 4,2, calls for a reserve of $2,000
for insurance, propert taxes and Forest Service permit. This Agreement, paragraph 4.1,
calls for a reserve of $2,100 for the same purposes. The parties do not intend that the
reserve for these purposes is now $4,100. Rather, the parties believe that the reserve for
that purpose is now $2,100. The parties intend that the reserves stated in this Agreement
are the current and correct reserves.
5. This Agreement may be modified only by the express written agreement of
the parties hereto.
6. Obligor shall not be allowed to assign this Agreement or delegate its
obligations under the Promissory Note. Secured Part shall be allowed to assign this
Agreement, the Promissory Note and all related documents. Any assignment or
endorsement of the Promissory Note by Secured Part, or its assigns, shall be deemed to
also operate as an assignment of this Agreement in favor of any such assignee or
endorsee to the Promissory Note.
7. A breach of any of the terms of this Agreement shall be deemed to be a
violation and breach of the IPUC Order.
8. This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original and all of which shall constitute but one and the same
instrument.
9. This Agreement shall be governed by and interpreted and construed in
accordance with the laws of the sate of Idaho.
10. In the event of any dispute arising in connection with, out of, or otherwise
relating to this Agreement or the Promissory Note, the prevailng part shall be entitled to
recover from the non-prevailng part, all costs, expenses and reasonable attorneys' fees
incurred by such prevailng part, whether incurred at the trial court, appellate court,
bankruptcy court, or if incurred prior to litigation.
11. Should any portion of this Agreement be declared as a matter of law to be
unlawful, void or otherwise inoperative, the remaining provisions wil remain in full force
and effect.
12. This Agreement, the Promissory Note and the documents to be executed
hereto contain the entire agreement between the parties.
"IIN WITNESS WHEREOF, the parties have executed this Agreement as of the L. day
of ~., ( , 2008.
LOCK BOX AND SECURITY AGREEMENT. 3
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ATLANTA POWER COMPANY, INC., ERIC ALBERDI
(~;;æ~ ì c: L¡ Lt )
By: Maverick Ray, aJ( ~~rael Ray, Preside By: Eric Alberdi
LOCK BOX AND SECURITY AGREEMENT. 4