Exhibit 10.30


 


EXECUTION VERSION


 




	
  $3,000,000.00

  	
   

  	
  May 21, 2008

  






 


PROMISSORY NOTE


 


FOR
VALUE RECEIVED, CONSONUS ACQUISITION CORP., a Delaware corporation (“Maker”), having its principal place of
business at 2282 South President’s Drive, Suite B, West Valley City, UT,
84120, hereby unconditionally promises to pay to the order of Proficio Bank, a
Utah corporation (“Lender”),
having its principal place of business at 420 East South Temple, Suite 520,
Salt Lake City, Utah 84111, the principal sum of Three Million Dollars and
No/100 ($3,000,000.00) in lawful money of the United States of America pursuant
to the terms and conditions of that certain Loan Agreement of even date
herewith between Maker and Lender, as the same may be amended, supplemented or
otherwise modified from time to time (the “Loan
Agreement”). Capitalized terms used in this Promissory Note (the
“Note”) without definition
have the meanings assigned to them in the Loan Agreement.


 


1.             Principal and
Interest in Accordance with Loan Agreement. The aggregate principal amount
of indebtedness evidenced hereby, and interest thereon, shall be payable as
provided in the Loan Agreement. The principal amount hereof may be prepaid only
in accordance with the terms and conditions of the Loan Agreement. As set forth
in the Loan Agreement, on the Maturity Date, Maker shall pay Lender the entire
remaining outstanding balance hereunder together with any other outstanding
Obligations.


 


2.             Payments.
All principal and interest hereunder are payable in lawful money of the United
States of America in immediately available funds as provided in the Loan
Agreement on the dates on which such payments shall become due and payable.
Except as otherwise provided in the Loan Agreement, payments received by Lender
from Maker on this Note shall be applied first to the payment of prepayment
premiums, fees and costs, then to interest that is due and payable, and only
thereafter to the outstanding principal balance.


 


3.             Certain Waivers,
Etc. Maker, for itself and its legal representatives, successors and
assigns, to the extent it may lawfully do so, hereby expressly waives
presentment, demand, protest, notice of protest, presentment for the purpose of
accelerating maturity and diligence in collection, and consents that Lender may
release or surrender, exchange or substitute any personal property or other
collateral security or guaranty now held or that may hereafter be held as
security for the payment of this Note, and may extend the time for payment or
otherwise modify the terms of payment of any part or the whole of the debt
evidenced hereby to the extent provided in the Loan Agreement without in any
way affecting the liability of Maker.


 


4.             Certain
References to Loan Agreement. This Note evidences, in part, the Loan (as
that term is defined in the Loan Agreement), and is the “Note” referred to in,
and is entitled to the benefits of, the Loan Agreement (including Exhibits and
Schedules attached thereto) and all other documents, instruments and agreements
evidencing and/or securing the indebtedness hereunder, including, without
limitation, the Security Agreement. A default or breach of any term or
condition of this Note will constitute an Event of Default under the Loan
Agreement (on the terms set forth therein). The occurrence or continuing existence
of an Event of Default under


 

















 


the
Loan Agreement or any of the other Loan Documents shall constitute a default
under this Note and shall, subject to the provisions of the Loan Agreement and
the Subordination Agreement, entitle Lender to accelerate the entire
indebtedness hereunder and to take such other action as may be provided for in
the Loan Agreement or any other document, instrument or agreement evidencing or
securing this Note, all in accordance with the terms of the Loan Agreement and the
other Loan Documents.


 


5.             Usury Savings
Clause. All agreements between or among Maker and Lender are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the indebtedness or otherwise, shall the
amount paid or agreed or deemed to be paid for the use or forbearance of the
indebtedness evidenced hereby, whether in the form of interest, fees or other
payment of cash or property (any such amount being referred to collectively in
this paragraph as “Interest”)
exceed the maximum permissible amount that Lender is permitted to receive under
applicable law. If, from any circumstances whatsoever, fulfillment of any
provision hereof or of the Loan Agreement and any of the other Loan Documents,
at the time performance of such provision shall be due, shall involve exceeding
such maximum amount, then, ipso facto,
the obligation to be fulfilled shall automatically be reduced to the limit of
such validity and if, from any circumstances, Lender should ever receive as
Interest an amount that would exceed such maximum permissible amount, such
amount as would be excessive Interest shall be applied to the reduction of the
principal balance evidenced hereby and not to the payment of Interest. All
interest paid or agreed to be paid to Lender shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the
full period until payment in full of the principal amount of this Note
(including the period of any renewal or extension thereof) so that the interest
thereon for such full period shall not exceed the maximum amount permitted by
applicable law. As used herein, the term “applicable law” shall mean the law in
effect as of the date hereof; provided, however, that in the event there
is a change in the law that results in a higher permissible rate of interest,
then this Note shall be governed by such new usury law as of its effective
date, provided further, however, that in the event there is a change in
the law or the application of such law that requires a lower permissible rate
of interest be applicable to the indebtedness evidenced hereby, then this Note
shall be governed by such new usury law as of its effective date. This
provision shall control every other provision of all agreements between Maker
and Lender with respect to the subject matter of this paragraph.


 


6.             Miscellaneous
Provisions. Whenever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or invalid under
applicable law of any jurisdiction, such provision shall be ineffective to the
extent of such prohibition or invalidity within such jurisdiction, without
invalidating the remainder of such provision or the remaining provisions of
this Note in such jurisdiction and without invalidating such prohibited or
invalid provision in any other jurisdiction. Whenever in this Note reference is
made to Lender or Maker, such reference is made to include, as applicable, a
reference to their respective successors and assigns. The provisions of this
Note shall be binding upon and inure to the benefit of said successors and
assigns. Maker’s successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for Maker.


 

















 


7.             Payment of
certain costs of Collection, Attorneys’ Fees, Etc. If this Note shall not be
paid when due and shall be placed by the holder hereof in the hands of any
attorney for collection, through legal proceedings (including litigation at
trial and on appeal) or otherwise, Maker agrees to pay reasonable attorneys’
fees to the holder hereof together with reasonable costs and expenses of
collection, including, without limitation, any such attorneys’ fees, costs and
expenses relating to any proceedings with respect to the bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or liquidation of
Maker or any other party (other than Lender) to any instrument or agreement
securing this Note.


 


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IN
WITNESS WHEREOF, Maker has duly executed this Note as of the date first set
forth above.


 


	
   

  	
  MAKER:

  
	
   

  	
   

  
	
   

  	
  CONSONUS ACQUISITION CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Nana Baffour

  
	
   

  	
  Name:

  	
  Nana
  Baffour

  
	
   

  	
  Title:
  

  	
  Chairman
  of the Board