FORM OF TERM LOAN NOTE] TERM LOAN NOTE
[FORM
OF TERM LOAN NOTE]
FOR
VALUE
RECEIVED, the
undersigned, HYDROGEN,
LLC, an
Ohio
limited liability company, with its principal place of business located at
0
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (“the “Borrower”),
promises to pay to the order of [Name
of Lender] (together
with its successors and assigns, the “Lender”),
on or
before the Maturity Date, the principal sum of One Million and No/100 Dollars
($1,000,000.00) in accordance with the terms of this Term Loan Note (this
“Note”).
This
Note is issued pursuant to that certain Loan and Security Agreement, of even
date herewith, entered into by and among the Borrower, the Guarantor, the Agent
and the Lenders (as amended from time to time, the “Agreement”).
Capitalized terms used herein and not defined herein shall have their respective
meanings as set forth in the Agreement.
INTEREST;
AMORTIZATION; DUE DATE; PREPAYMENT:
Interest on the unpaid principal balance hereof shall be computed on the basis
of the actual number of days elapsed and a year of 360 days and shall accrue
at
a rate equal to Twelve Percent (12%) per annum (the “Interest
Rate”)
and
shall be payable in arrears. Following and during the continuation of an Event
of Default, interest on the unpaid principal balance shall accrue at a rate
equal to Eighteen Percent (18%) per annum (the “Default
Interest Rate”).
Principal,
interest and all other amounts due to Lender pursuant to this Note, the
Agreement and other Loan Documents shall be due and payable by Borrower in
accordance with the Agreement.
Borrower
may prepay the unpaid principal sum hereof without premium or penalty,
provided,
however,
that,
(i)
such prepayment is no less than the amount of the remaining outstanding
principal sum hereof, and (ii) as part of such prepayment, Borrower shall pay
Lender all other amounts due to Lender pursuant to this Note, the Agreement
and
other Loan Documents, and (iii) in the event Borrower makes such prepayment
prior to the Maturity Date, Borrower shall also pay Lender an amount equal
to
two and one-half percent (2.5%) multiplied by the amount of the Loan prepaid
(the “Prepayment
Fee”).
The
Prepayment Fee is intended to compensate Lender for committing and deploying
funds for Borrower’s loan pursuant to the Agreement and for Xxxxxx’s loss of
investment of such funds in connection with such early termination, and is
not
intended as a penalty.
FEES
AND COSTS:
All
fees, reasonable costs and expenses set forth in the Agreement shall be paid
by
Borrower in accordance with the terms thereof.
MAXIMUM
RATE OF INTEREST:
It is
intended that the Interest Rate and the Default Interest Rate shall never exceed
the maximum rate, if any, which may be legally charged in the State of New
York
for loans made to corporations (the “Maximum
Rate”).
If
the provisions for interest contained in this Note would result in a rate higher
than the Maximum Rate, the interest shall nevertheless be limited to the Maximum
Rate and any amounts which may be paid toward interest in excess of the Maximum
Rate shall be applied to the reduction of principal, or, at the option of
Lender, returned to the Borrower.
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NOTICES:
All
notices shall be given in accordance with the Agreement at Lender’s address
designated in the Agreement, or to such other place as Lender may from time
to
time direct by written notice to Borrower.
APPLICATION
OF PAYMENTS:
All
payments made hereunder shall be made without defense or set-off for any debt
or
other claim which Borrower may assert against Lender. All payments received
hereunder shall be applied in accordance with the provisions of the
Agreement.
SECURITY:
This
Note is secured by the Loan Documents. The Borrower hereby acknowledges, admits
and agrees that its obligations under this Note, the Agreement and other Loan
Documents are full recourse obligations.
DEFAULTS;
REMEDIES:
Upon
the happening of an Event of Default, the Lender may declare the unpaid
principal sum, accrued and unpaid interest and all other amounts under this
Note
and the Agreement immediately due and payable. In such event, and subject to
the
Agreement, Lender may enforce the payment of this Note either by proceeding
against the Collateral, or against the Borrower in one or more proceedings
separately, successively, or simultaneously and in any order or manner permitted
by law as Lender deems desirable. Lender shall not be required to exhaust its
security before proceeding against the Borrower. None of the rights or remedies
of the Lender are to be deemed waived or affected by any failure or delay of
the
Lender to exercise its rights; and, in addition, the Lender shall have all
of
its rights and remedies set forth in the Agreement.
The
failure to exercise any of the rights and remedies set forth in this Note or
the
Agreement shall not constitute a waiver of the right to exercise the same or
any
other option at any subsequent time in respect of the same event or any other
event. The acceptance by Lender of any payment which is less than payment in
full of all amounts due and payable at the time of such payment shall not
constitute a waiver of the right to exercise any of the foregoing rights and
remedies at that time or at any subsequent time or nullify any prior exercise
of
any such rights and remedies without the express written consent of Lender,
except as and to the extent otherwise provided by law.
WAIVERS:
The
Borrower waives demand for payment, presentment for payment, protest, notice
of
nonpayment or dishonor and any and all other notices and demands
whatsoever.
TERMINOLOGY:
Any
reference herein to Lender shall be deemed to include and apply to every
subsequent holder of this Note.
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HEADINGS:
The
headings in this Note are for convenience of reference only and shall not affect
the meaning or interpretation of this Note or any provision hereof.
AGREEMENT:
Reference is made to the Agreement for provisions as to the Loan, Collateral,
fees, charges, remedies and other matters.
APPLICABLE
LAW:
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK, THE LAWS OF WHICH THE BORROWER HEREBY
EXPRESSLY ELECTS TO APPLY TO THIS NOTE, WITHOUT GIVING EFFECT TO PROVISIONS
FOR
CHOICE OF LAW THEREUNDER. THE BORROWER AGREES THAT ANY ACTION OR PROCEEDING
BROUGHT TO ENFORCE OR ARISING OUT OF THIS NOTE SHALL BE COMMENCED IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT.
WAIVER
OF JURY TRIAL:
BORROWER
HEREBY WAIVES ANY AND ALL RIGHTS THAT IT MAY NOW OR HEREAFTER HAVE UNDER THE
LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE TO A TRIAL BY JURY OF ANY
AND
ALL ISSUES ARISING EITHER DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING
BETWEEN BORROWER, LENDER OR ITS SUCCESSORS AND ASSIGNS, OUT OF OR IN ANY WAY
CONNECTED WITH THIS NOTE, THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS AND/OR
THE
COLLATERAL. IT IS INTENDED THAT SAID WAIVER SHALL APPLY TO ANY AND ALL DEFENSES,
RIGHTS, AND/OR COUNTERCLAIMS IN ANY ACTION OR PROCEEDINGS BETWEEN BORROWER
AND
LENDER. XXXXXXXX WAIVES ALL RIGHTS TO INTERPOSE ANY CLAIMS, DEDUCTIONS, SETOFFS
OR COUNTERCLAIMS OF ANY KIND, NATURE OR DESCRIPTION IN ANY ACTION OR PROCEEDING
INSTITUTED BY XXXXXX WITH RESPECT TO THIS NOTE, THE OTHER LOAN DOCUMENTS, THE
OBLIGATIONS, THE COLLATERAL OR ANY MATTER ARISING THEREFROM OR RELATING THERETO,
EXCEPT COMPULSORY COUNTERCLAIMS.
CONSENT
TO JURISDICTION:
BORROWER HEREBY (a) IRREVOCABLY SUBMITS AND CONSENTS TO THE EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK WITH RESPECT
TO
ANY ACTION OR PROCEEDING ARISING OUT OF THIS NOTE, THE OTHER LOAN DOCUMENTS,
THE
OBLIGATIONS AND/OR THE COLLATERAL OR ANY MATTER ARISING THEREFROM OR RELATING
THERETO, AND (b) WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS
WITH RESPECT THERETO. IN ANY SUCH ACTION OR PROCEEDING, XXXXXXXX WAIVES PERSONAL
SERVICE OF THE SUMMONS AND COMPLAINT OR OTHER PROCESS AND PAPERS THEREIN AND
AGREES THAT THE SERVICE THEREOF MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO BORROWER AT ITS OFFICES SET FORTH HEREIN OR OTHER ADDRESS
THEREOF OF WHICH XXXXXX HAS RECEIVED NOTICE AS PROVIDED IN THE
AGREEMENT.
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ASSIGNMENT:
Lender
reserves the right to sell, assign, transfer, negotiate, or grant participation
interests in all or any part of this Note, or any interest in Xxxxxx’s rights
and benefits hereunder subject to the provisions of the Agreement.
LOST
NOTE:
In the
event of the loss, theft, destruction or mutilation of this Note, upon request
of Xxxxxx and submission of evidence reasonably satisfactory to the Borrower
of
such loss, theft, destruction or mutilation, and, in the case of any such loss,
theft, or destruction, upon deliver of a bond or indemnity reasonably
satisfactory to Lender, or in the case of any such mutilation, upon surrender
and cancellation of this Note, Lender will issue a new Note of like tenor as
the
lost, stolen, destroyed or mutilated Note.
IN
WITNESS WHEREOF,
this
Note has been duly executed and delivered by the Borrower as of the day and
year
first above written.
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By:
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Name:
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Xxxx
X. Xxxxx
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Chief
Executive Officer
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