Exhibit 10.123


 


PROMISSORY NOTE


 


$700,000.00              


 


February 10, 2009


 


1.                                      MAKER’S PROMISE TO PAY


 


FOR VALUE RECEIVED, MEADE INSTRUMENTS CORP.,
a Delaware corporation (“Maker”),
promises to pay to the order of THE IRVINE COMPANY LLC, a Delaware limited liability company
(“Payee”), at the address set
forth in Section 3 hereof, the principal sum of Seven Hundred Thousand
Dollars ($700,000.00), together with accrued interest on the unpaid principal
balance at the applicable rate as set forth in Section 2 hereof.  Maker acknowledges and agrees that Payee may
assign or otherwise transfer this Note at any time.  Payee or anyone who takes this Note by any
such transfer and who is entitled to receive payments under this Note is
sometimes hereinafter referred to as the “Note
Holder.”


 


2.                                      INTEREST


 


No
interest shall accrue on the principal balance of this Note. Notwithstanding
the foregoing, upon the occurrence of an Event of Default as described in Section 6(a) below,
and for so long as such default continues, the sum(s) of principal then
due and payable hereunder, whether by acceleration or otherwise, shall bear
interest at the per annum rate of ten percent (10%) (the “Default Rate”).


 


3.                                      PAYMENTS


 


NOTICE
TO MAKER:  THE PAYMENT OF PRINCIPAL AND
INTEREST AND ANY OTHER SUMS THEN DUE HEREUNDER IS A BALLOON PAYMENT.  MAKER HAS NO RIGHT WHATSOEVER TO EXTEND OR
RENEW THIS NOTE WHEN THE BALLOON PAYMENT BECOMES DUE ON THE MATURITY DATE.  NOTE HOLDER IS UNDER NO OBLIGATION TO
REFINANCE THE LOAN AT THAT TIME.


 


Maker
shall make payments of principal under this Note in accordance with the
following schedule:


 


(a)                                  Two Hundred Thousand Dollars
($200,000.00) on May 1, 2009;


 


(b)                                 Two Hundred Thousand Dollars
($200,000.00) on August 1, 2009; and


 


(c)                                  Three Hundred Thousand Dollars
($300,000.00) on November 1, 2009 (the “Maturity Date”).


 


On the
Maturity Date, the entire unpaid principal balance hereof, together with
accrued but unpaid interest thereon and any other sums then due hereunder,
shall immediately become due and payable in full.


 


Any
payments received by Note Holder pursuant to the terms hereof shall be applied
first to the payment of any sums, other than principal and interest, due Note
Holder pursuant to the terms hereof, next to the payment of all interest
accrued to the date of such payment, and then to the payment of principal.  All payments hereunder are payable in lawful
money of the United States of America and shall be wired to the following
account of Note Holder, or shall be payable at such other place as the Note
Holder hereof may designate from time to time:


 


Wells Fargo Bank

San Francisco, CA

Account No: 4944677699

Account Name: TIC - Tech Portfolio

Routing No: 121000248

[Amount of Wired Amount or ACH]

Mead Instruments Corp. - 663841-S29453


 


4.                                      MAKER’S RIGHT TO PREPAY


 


Maker
shall have the right to prepay all or part of the unpaid principal balance
hereof, together with accrued but unpaid interest thereon, at any time without
penalty.


 


5.                                      INTEREST RATE LIMITATION


 


If it
is determined that the transaction contemplated hereby is subject to the usury
laws of the State of California, Note Holder and Maker stipulate and agree that
none of the terms and provisions 


 

















 


contained herein or in any document or instrument
executed in connection herewith shall ever be construed to create a contract
for the use, forbearance or detention of money requiring payment of interest at
a rate in excess of the maximum interest rate permitted to be charged by the
laws of the State of California.  If any
Note Holder shall collect monies which are deemed to constitute interest which
would otherwise increase the effective interest rate on this Note to a rate in
excess of the maximum rate permitted to be charged by the laws of the State of
California, all such sums deemed to constitute interest in excess of such
maximum rate shall, at the option of Note Holder, be credited to the payment of
the sums due hereunder or returned to Maker.


 


6.                                      DEFAULT


 


The
occurrence of any of the following shall be deemed to be an “Event of Default” under this Note:


 


(a)           the failure of Maker to pay
principal, interest and any other sums when due pursuant to the terms hereof;
or


 


(b)           the failure of Maker to fully comply
with any other covenant or obligation under this Note.


 


7.                                      REMEDIES


 


Upon
the occurrence of an Event of Default hereunder, Note Holder may, in its sole
and absolute discretion and without demand or notice to Maker, (a) declare
the entire unpaid balance hereof, together with accrued but unpaid interest
thereon and any other sums then due hereunder, immediately due and payable, and
(b) exercise any and all rights and powers and pursue any and all remedies
now or hereafter available under applicable law.  No delay or omission on the part of Note
Holder in exercising any right or remedy under this Note shall operate as a
waiver of such right or remedy.


 


8.                                      LATE CHARGE


 


If any
payment due hereunder is not received by the Note Holder within ten (10) calendar
days after the date such payment is due, Maker shall pay to Note Holder,
without demand, a late charge in an amount equal to four percent (4%) of the
amount past due.  It would be
impracticable or extremely difficult to fix the Note Holder’s actual damages if
payment is not paid when due hereunder, and said late charge shall be deemed to
be the Note Holder’s damage for any such late payment, but shall not limit the
Note Holder’s right to compel prompt performance of any obligation or to
exercise any other remedy under this Note. 
No late charge assessed shall exceed the maximum permitted by law.


 


9.                                      NOTICES


 


Any
notice, request, demand, instruction or other communication to be given to any
party hereunder shall be in writing and shall be deemed to have been duly given
three (3) business days after deposit in the United States mail or, if
personally delivered or sent by registered or certified mail, return receipt
requested, when delivered, as follows:


 


If to Maker:                                  MEADE INSTRUMENTS CORP.

27 Hubble

Irvine, CA  92618

Attention:


 


If to Payee:                                    THE IRVINE COMPANY LLC

550 Newport Center Drive

Newport Beach, CA  92660

Attn:  Vice President Operations, Irvine
Office Properties - Technology Portfolio


 


The
addressees and addresses for the purpose of this paragraph may be changed by
giving written notice of such change in the manner herein provided for giving
notice.  However, unless and until such
written notice of change is actually received, the last address and addresses
as stated by written notice, or provided herein if no written notice of change
has been received, shall be deemed to continue in effect for all purposes
hereunder.


 


10.                               WAIVERS


 


Maker
hereby waives diligence, presentment, protest and demand, notice of protest,
demand, dishonor and nonpayment of this Note, and notice of intention to
accelerate the maturity of this Note and expressly agrees that, without in any
way affecting the liability of Maker hereunder, Note Holder may extend any
maturity date or the time for payment of any installment due hereunder, accept
additional security, release any party liable hereunder and release any
security now or hereafter securing this Note. 
Maker further waives, to the full extent permitted by law, the right to
plead any and all statutes of limitations as a defense to any demand on this
Note, or on any deed of trust, security agreement, lease assignment, guaranty
or other instrument now or hereafter securing this Note.  Maker hereby waives all rights of setoff and
counterclaim with respect to this Note, including rights of setoff and
counterclaim with respect to this Note which may arise from claims heretofore
unknown to Maker.


 


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11.                               ATTORNEYS’ FEES


 


If the Note Holder
seeks legal advice following a default by Maker hereunder or refers this Note
to collection or to reclaim, protect, preserve or enforce its interest in this
Note or under any instrument securing this Note, then Maker shall pay all
attorneys’ fees and expenses and other costs relating thereto.


 


12.                               THIS NOTE IS SECURED
BY A LETTER OF CREDIT.  This Note is secured by a Letter of Credit in the amount of Seven Hundred
Thousand Dollars ($700,000.00) issued by Bank of America (the “Letter of Credit”).


 


13.                               SEVERABILITY


 


Every
provision of this Note is intended to be severable.  In the event any term or provision hereof is
declared by a court of competent jurisdiction to be illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the balance
of the terms and provisions hereof, which terms and provisions shall remain
binding and enforceable.


 


14.                               NUMBER AND GENDER


 


In
this Note the singular shall include the plural and the masculine shall include
the feminine and neuter gender, and vice versa, if the context so requires.


 


15.                               TIME IS OF THE ESSENCE


 


Time
is strictly of the essence under this Note and any amendment, modification or
revision hereof.


 


16.                               CHOICE OF LAW


 


This
Note shall be governed by and construed in accordance with the laws of the
State of California.


 


17.                               JOINT AND SEVERAL LIABILITY


 


If
this Note should be signed by more than one party, the liability under this
Note of each party shall be joint and several. 
In addition, if Maker is a partnership, the liability under this Note of
each general partner of Maker, and the liability of each general partner of a
partnership which is itself a general partner of Maker, shall be joint and
several.


 


MAKER:


 


MEADE INSTRUMENTS CORP.,


a Delaware corporation


 


	
  By:

  	
  /s/Paul E. Ross

  	
   

  
	
   

  	
  Paul E. Ross

  	
   

  
	
   

  	
  Senior Vice President -
  Finance Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/Steven G. Murdock

  	
   

  
	
   

  	
  Steven G. Murdock

  	
   

  
	
   

  	
  Chief Executive Officer

  	
   

  



 


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