xedar8kex101_12302008.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.

     

    SIXTH
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, as 

              subsequently
      amended and restated

              October
      9, 2008, and as subsequently 

              amended
      and restated 

              December
      31, 2008

            
	
              Interest
      Rate: Variable - Key Bank Prime Rate

               

            	
              Due
      Date: On Demand after 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 Sixth 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.

     

     

    
      
         

      

      
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    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.

     

    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, upon
demand by Holder at any time after 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.

     

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

     

    
      
         

      

      
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    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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