xedar8k_ex10110142008.htm


     

    
      

      

    

     

    Exhibit 10.1


    
 

    THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND IS NOT A "REGISTERED SECURITY" AS THAT TERM IS DEFINED IN RULE 144
UNDER THE ACT.  THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF
WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE MAKER.

    


    FIFTH
AMENDED AND RESTATED

    SECURED
SUBORDINATED PROMISSORY NOTE

    


    XEDAR
CORPORATION

    


    


    
      	
              Original
      Principal Balance: $2,800,000.00

              so
      much thereof as actually advanced

            	
              Issue
      Date: March 3, 2008, as amended

              and
      restated April 24, 2008, as subsequently amended and restated June 30,
      2008,

              as
      subsequently amended and restated August 20, 2008, as subsequently amended
      and restated September 4, 2008, and as subsequently amended
      and

              restated
      October 9, 2008

            
	
              Interest
      Rate: Variable - Key Bank Prime Rate

               

            	
              Due
      Date: 12/31/2008

            


    

    


    FOR VALUE RECEIVED, XEDAR
CORPORATION, a Colorado corporation ("Maker"), whose address is 3773
Cherry Creek North Drive, Suite 995, Denver, Colorado 80209, hereby
unconditionally promises to pay to the order of Hugh H. Williamson, III
(together with any authorized subsequent holder, are hereinafter referred to as
"Holder") whose address is 3773 Cherry Creek North Drive, Suite 995, Denver,
Colorado 80209, the principal sum of Two Million Eight Hundred Thousand Dollars
and No Cents ($2,800,000.00), or so much thereof as is actually advanced from
time to time, pursuant to the terms hereof and in accordance with that certain
Pledge and Security Agreement, dated as of the issue date hereof ("Pledge") and
all other documents executed in connection with the loan evidenced by this Fifth
Amended and Restated Secured Subordinated Promissory Note ("Note") (this Note,
the Pledge, and all other documents executed in connection herewith are
collectively referred to as the "Loan Documents"), together with interest
thereon, from and after the date hereof, at an annual rate determined in
accordance with the terms set forth herein, on all unpaid balances until paid in
full.

    


    All payments required hereunder shall
be made in lawful currency of the United States of America and shall be paid by
Maker to Holder as specified herein, or to such other person or entity, or at
such other place, as Holder hereof may designate from time to time in
writing.

     

    Interest shall accrue on all principal
amounts advanced to Maker hereunder at a rate equal to the Key Bank Prime Rate,
as it may be adjusted from time to time, from and after the date of each advance
made pursuant hereto.  Interest will be calculated on the basis of a
365-day year.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


     

    Maker shall pay all unpaid,
outstanding, and accrued interest, on all amounts advanced hereunder, in regular
monthly installments, commencing on the last day of each month beginning March
31, 2008.

     

    Unless prepaid by Maker, the entire
unpaid principal balance, together with all accrued and unpaid interest, and all
other amounts due and owing under the terms of this Note and the Loan Documents
shall be due and payable, and shall be paid, in full, on the earlier of the
receipt of at least $10 million in new funding or on December 31, 2008 ("Maturity
Date").

     

    Maker may prepay the entire debt
evidenced by this Note, or any portion thereof, at any time and from time to
time, without penalty or premium. All prepayments of principal or interest shall
be applied to the latest interest or principal payments to be paid under this
Note and shall not reduce or delay subsequent installment payments to be made
hereunder.

    


    In the event of failure to make any
payment when due hereunder, or in the event the entire balance hereunder is
accelerated as the result of a breach of, or the event of a default under the
terms of this Note or any of the other Loan Documents (which default is not
cured within the permitted cure periods), or an advance is made under the Loan
Documents to preserve and protect any collateral securing this Note, or to
enforce the provisions of this Note or the other Loan Documents, interest shall
be paid upon the entire outstanding principal balance and all other advances
made pursuant to this provision, at the rate of fifteen percent (15%) per annum,
until all amounts due and owing under this Note and the Loan Documents are paid
in full.  In each event that any payment due hereunder shall be made
by check or other negotiable instrument, and such check or negotiable instrument
is dishonored or refused by Maker or the payor institution, the Maker agrees to
pay, in addition to the all other sums due hereunder, a charge of One Hundred
Fifty Dollars and No Cents ($150.00) per check or negotiable instrument so
dishonored or refused.  At Holder’s option, all sums due hereunder
must be paid in the form of bank cashier’s check or wire transfers.

     

    All payments made hereunder shall first
be applied to the payment of any interest, including interest at the default
rate due and owing, and then to the payment of other sums (other than principal)
due and owing under the Loan Documents, then to the payment of the principal
balance due and owing hereunder.

     

    This Note is secured by various Loan
Documents, including, without limitation, the Pledge, and such other agreements
and assignments as required by Holder and executed and delivered by Maker in
connection with the loan evidenced by this Note and the Loan
Documents.


    
      
         


      

      
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    In the event Maker shall default in any
of the payments due hereunder, Holder shall give Maker notice of such default
and thereafter, if such payment is not made within ten (10) days after such
notice is given, or in the event Maker breaches or defaults in the performance
of any covenant, obligation, condition, representation or warranty contained in
any of the other Loan Documents, which breach or default is not cured within the
applicable cure periods as provided in the Loan Documents, the full amount
remaining unpaid hereunder, together with accrued and unpaid interest, and fees
and any subsequent advances, including, without limitation, advances made by
Holder for payment of reasonable attorneys’ fees or in connection with the
preservation or protection of any collateral pledged to secure payment hereof,
at the option of Holder, shall be accelerated and shall become immediately due
and payable, in full, without further notice.  It is agreed that
notice of the exercise of such acceleration option is hereby expressly
waived.  Failure by Holder at any time, or from time to time, to
exercise such acceleration option shall not constitute a waiver of the right to
exercise the same at any other time.

    


    This Note may not be transferred by
Maker or assumed by any third party, except as permitted by Holder in
writing.

     

    This Note is subject to the express
condition that at no time shall Maker be obligated or required to pay interest
on the principal balance due under the Note at a rate which could subject Holder
of the Note to either civil or criminal liability as a result of being in excess
of the maximum interest rate which Maker is permitted by law to contract or
agree to pay.  In the event maturity of this Note is accelerated by
reason of an election by Holder thereof resulting from a breach or default
hereunder or under the Pledge, or under the terms of any of the other Loan
Documents, or by voluntary prepayment by Maker, or otherwise, then earned
interest may never include more than the maximum rate of interest permitted by
applicable law.  If from any circumstance any Holder of this Note
shall ever receive interest or other charges constituting interest, or
adjudicated as constituting interest, the amount of which, if any, would exceed
the maximum rate of interest permitted by applicable law, said excess amount
shall be reclassified as a principal payment and shall be applied to the
reduction of the principal amount then owing on this Note or on account of any
other principal indebtedness of Maker to Holder and not to the payment of
interest; or if such excessive interest exceeds the unpaid balance of principal
of this Note and any such other indebtedness, the amount of such excessive
interest that exceeds the unpaid principal balance of this Note or such other
indebtedness shall be refunded to Maker.  All sums paid or agreed to
be paid to Holder for the use, forbearance or detention of the indebtedness of
Maker to Holder shall be prorated, allocated and spread throughout the full term
of such indebtedness until payment in full for the purpose of determining the
actual rate of interest on such indebtedness so that the actual rate of interest
on such indebtedness is uniform throughout the term, and, in conjunction
therewith, if the loan evidenced by this Note should ever be deemed to consist
of two or more loans, then any sum paid or agreed to be paid to Holder for the
use, forbearance or detention of the indebtedness of Maker to Holder which is
deemed to be excessive interest with respect to one or more of such loans shall
be allocated to the loan or loans for which a maximum lawful rate of interest
has not been contracted for, charged or received or for which no maximum rate of
interest exists.


    
      
         


      

      
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    Except as otherwise provided for
herein, Maker, endorsers or other persons liable hereunder, waive diligence or
delinquency in collection, demand for payment, presentment for payment, protest,
notice, notice of protest, notice of dishonor and all duty or obligation of
Holder to effect, protect, perfect, retain or enforce any security for payment
of this Note or to proceed against any collateral.  This Note shall be
the joint and several obligation of Maker, endorsers or other persons liable
hereunder and shall be binding upon them, their personal representatives, heirs,
successors and assigns.

     

    Maker, endorsers or other persons
liable hereunder, jointly and severally, unconditionally guarantee prompt
satisfaction when due, whether by acceleration or otherwise, of the entire
outstanding principal balance and all accrued and unpaid interest, and amounts
of any additional advancements, and further agree to immediately pay to Holder
upon demand, all losses, costs, expenses (including reasonable attorneys’ fees
as provided herein) incurred by Holder from collection and/or enforcement of
this Note in the event of default.  If this Note is placed in the
hands of an attorney in the event of default for collection or to enforce
payment hereunder or to enforce any other obligation as so provided in any other
Purchase Document, whether suit or other legal action is filed or foreclosure
proceedings are in fact commenced, Maker agrees to pay, in addition to all other
sums due hereunder, reasonable attorneys’ fees incurred in connection with the
enforcement of payment or the enforcement of the other obligations of Maker
under the other Loan Documents, and the collection of said sums, including
reasonable attorneys’ fees incurred in preparation for and proceedings in
foreclosure, probate, bankruptcy, receivership, or other legal proceedings in
connection with the enforcement of payment or other obligations and collection
of all sums evidenced by this Note.

    


    No extension, postponement,
forbearance, delay or failure on the part of the Holder of this Note in the
exercise of any power, right or remedy hereunder, under the Pledge or under the
other Loan Documents, or at law or in equity, shall operate as a waiver thereof,
nor shall a single or partial exercise of any power or right preclude other or
further exercise thereof or the exercise of any other power, right or
remedy.  All rights, powers and remedies of the Holder shall be
cumulative and may be exercised simultaneously or from time to time in such
order and manner as the Holder in its sole discretion may elect.

     

    In the event any one or more of the
provisions of this Note for any reason shall be held to be invalid, illegal or
unenforceable, in whole or in part or in any respect, or in the event that any
one or more of the provisions of this Note operates or would operate
prospectively to invalidate this Note, then and in either of those events, such
provision or provisions only shall be deemed null and void and shall not affect
any other provision of this Note, and the remaining provisions of this Note
shall remain operative and in full force and effect and shall in no way be
affected, prejudiced or disturbed thereby.

     

    This Note may not be amended, modified,
or changed, nor shall any waiver by Holder hereof of any provision of this Note
be effective, except by written instrument signed by the party against whom
enforcement of such amendment, modification, or waiver is
sought.


    
      
         


      

      
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    Time is of the essence with respect to
all payment provisions set forth in this Note.

    


    Holder may, in the exercise of its
discretion, foreclose its security interests and liens in any property securing
payment of this Note simultaneously or severally, in any order selected by
Holder.  Maker waives any right to require Holder to marshal assets in
enforcing Holder's remedies.

    


    Maker, and all endorsers or other
persons liable hereunder, agree to promptly pay any and all deficiencies which
may arise if Holder exercises its rights under the Pledge or any other agreement
comprising the Loan Documents, it being the intention of Maker and Holder that
Holder shall have full recourse against each undersigned Maker, all endorsers or
other persons liable hereunder and that they shall remain fully liable for the
all amounts which are due and owing hereunder, regardless of the value of the
collateral securing this Note and regardless of whether or not the Holder elects
to exercise any of its remedies against the collateral.

    


    Each individual executing this Note
represents and warrants that he or she is duly authorized to execute and deliver
this Note on behalf of the person or entity for which he or she is so executing
and that this Note is binding upon the undersigned Maker in accordance with its
terms, except to the extent that enforcement of remedies is limited by
applicable bankruptcy, insolvency and other laws affecting the enforcement of
creditors’ rights generally, and that the proceeds of the loan to the
undersigned Maker, which is the basis for the indebtedness evidenced by this
Note, shall be used for business and commercial purposes, and not individually
for any personal, family or household purposes.

    


    This Note shall be interpreted and
enforced in accordance with the substantive and procedural laws and rules of the
State of Colorado.  The parties hereto also agree that jurisdiction
and venue for all proceedings under this Note shall be in city and county of
Denver, Colorado.  The prevailing party in any such proceeding shall
be entitled to recover its reasonable attorney’s fees and costs incurred, in
addition to any other damages.

    


    IN WITNESS WHEREOF, the
undersigned has executed this Note as of the day and year first above
written.

    


    MAKER:

     

    XEDAR CORPORATION,

    a
Colorado corporation

    


    


    By: /s/ Steven M.
Bragg                                                                

    Steven M. Bragg, CFO

    


    
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