EXHIBIT 10.17
PROMISSORY NOTE
$100,000 As of August 26, 2005
Clayton, Missouri
Viceroy Acquisition Corporation (the "Maker") promises to pay to the order of
Lee E. Mikles (the "Payee") the principal sum of One Hundred Thousand Dollars
and No Cents ($100,000.00) in lawful money of the United States of America,
together with interest on the unpaid principal balance of this Promissory Note
(this "Note"), on the terms and conditions described below.
1. Principal. The principal balance of this Note shall be repayable on
the earlier of (i) August 26, 2006 or (ii) the date on which Maker consummates
an initial public offering of its securities under the Securities Act of 1933,
as amended.
2. Interest. Interest shall not accrue on the unpaid principal balance
of this Note.
3. Application of Payments. All payments shall be applied first to
payment in full of any costs incurred in the collection of any sum due under
this Note, including (without limitation) reasonable attorneys' fees, then to
the reduction of the unpaid principal balance of this Note.
4. Events of Default. Each of the following shall constitute an event
of default ("Event of Default") under this Note:
(a) Failure to Make Required Payments. Failure by Maker to pay the
principal of or accrued interest on this Note within five (5) business days
following the date when due.
(b) Voluntary Bankruptcy, Etc. The commencement by Maker of a
voluntary case under the Federal Bankruptcy Code, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency, reorganization, rehabilitation or other similar law, or the consent
by it to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of Maker
or for any substantial part of its property, or the making by it of any
assignment for the benefit of creditors, or the failure of Maker generally to
pay its debts as such debts become due, or the taking of corporate action by
Maker in furtherance of any of the foregoing.
(c) Involuntary Bankruptcy, Etc. The entry of a decree or order
for relief by a court having jurisdiction in the premises in respect of Maker in
an involuntary case under the Federal Bankruptcy Code, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of Maker or for any substantial part
of its property, or ordering the winding-up or liquidation of the affairs of
Maker, and the continuance of any such decree or order unstayed and in effect
for a period of sixty (60) consecutive days.
5. Remedies.
(a) Upon the occurrence of an Event of Default specified in
Section 4(a) hereof, Payee may, by written notice to Maker, declare this Note to
be immediately due and payable, whereupon the unpaid principal amount of this
Note, and all other amounts payable hereunder, shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, anything contained herein or in the documents
evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in either
Section 4(b) or 4(c) hereof, the unpaid principal balance of this Note, and all
other amounts payable hereunder, shall automatically and immediately become due
and payable, in all cases without any action on the part of Payee, including
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived.
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6. Waivers. Maker and all endorsers and guarantors of, and sureties
for, this Note waive presentment for payment, demand, notice of dishonor,
protest, and notice of protest with regard to this Note, all errors, defects and
imperfections in any proceedings instituted by Payee under the terms of this
Note, and all benefits that might accrue to Maker by virtue of any present or
future laws exempting any property, real or personal, or any part of the
proceeds arising from any sale of any such property, from attachment, levy or
sale under execution, or providing for any stay of execution, exemption from
civil process, or extension of time for payment; and Maker agrees that any real
estate that may be levied upon pursuant to a judgment obtained by virtue hereof,
on any writ of execution issued hereon, may be sold upon any such writ in whole
or in part in any order desired by Payee.
7. Unconditional Liability. Maker hereby waives all notices in
connection with the delivery, acceptance, performance, default, or enforcement
of the payment of this Note, and agrees that its liability shall be
unconditional, without regard to the liability of any other party, and shall not
be affected in any manner by any indulgence, extension of time, renewal, waiver
or modification granted or consented to by Payee, and consents to any and all
extensions of time, renewals, waivers, or modifications that may be granted by
Payee with respect to the payment or other provisions of this Note, and agrees
that additional makers, endorsers, guarantors, or sureties may become parties
hereto without notice to it or affecting its liability hereunder.
8. Notices. Any notice called for hereunder shall be deemed properly
given if in writing and (i) sent by certified mail, return receipt requested,
(ii) personally delivered, (iii) dispatched by any form of private or
governmental express mail or delivery service providing receipted delivery, (iv)
sent by confirmed telefacsimile or (v) sent by confirmed e-mail, to the
following addresses or to such other address as either party may designate by
notice in accordance with this Section:
If to Maker:
Viceroy Acquisition Corporation
8235 Forsyth Boulevard, Suite 400
Clayton, Missouri 63105
Attn.: Chief Executive Officer
If to Payee:
Lee E. Mikles
1801 Century Park East, Suite 460
Los Angeles, California 90067
Notice shall be deemed given on the earlier of (i) actual receipt by the
receiving party, (ii) the date shown on the conformed telefacsimile transmission
confirmation, (iii) the date on which an e-mail transmission was received by the
receiving party's on-line access provider (iv) the date reflected on a signed
delivery receipt, or (vi) two (2) business days following tender of delivery or
dispatch by express mail or delivery service.
9. Governing Law; Construction. This Note, the legal relations between
the Maker and Payee and the adjudication and enforcement hereof, shall be
governed by and construed in accordance with the laws of the State of California
applicable to contracts executed in and to be performed in that state, without
regard to the conflicts of law provisions thereof to the extent such principles
or rules would require or permit the application of the laws of another
jurisdiction.
10. Severability. Any provision contained in this Note which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has
caused this Note to be duly executed the day and year first above written.
VICEROY ACQUISITION CORPORATION
By: /s/ Lee E. Mikles
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Name: Lee E. Mikles
Title: Chief Executive Officer
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