EXHIBIT 10.28.1
FORM OF SECURED PROMISSORY NOTE
$________ _______, 2001
FOR VALUE RECEIVED, this Secured Promissory Note (this "Note") is made
by Probex Corp., a Delaware corporation ("Maker"), to ________________
("Payee"). This Note is one of the "Notes" as defined in, and is entitled to the
benefits of, that certain Security Agreement (the "Security Agreement"), dated
as of the date hereof.
1. Payments. Maker hereby promises to pay to the order of Payee the
principal sum of ___________________ Dollars ($_________) at
______________________________, or such other place as Payee may designate from
time to time in writing, in lawful money of the United States of America and in
immediately available funds, together with interest on the unpaid principal
balance hereof at the rate provided herein from the date of this Note until
payment in full of the indebtedness evidenced by this Note. This Note and all
accrued and unpaid interest shall be due and payable in one lump sum on
September 1, 2001. Any payment made under this Note shall be applied first to
interest accrued and unpaid on the outstanding principal balance as of such date
of payment and then to the outstanding principal balance due hereunder. If any
required payment falls due on a Saturday, Sunday or a national or state bank
holiday in Texas, then such date shall be extended to the next succeeding day
that is not a Saturday, Sunday or national or state bank holiday.
2. Interest Rate. The principal amount outstanding from time to time
hereunder shall bear interest calculated on the basis of a 365-day year, at a
rate equal to ten percent (10%) per annum.
3. Voluntary Prepayment. This Note may be prepaid, in whole or in part,
without premium or penalty. All prepayments shall be applied first to accrued
interest and then to principal.
4. Mandatory Prepayment. Maker shall be required to prepay this Note
upon the cumulative receipt by Maker or its subsidiaries of immediately
available funds equal to or greater than $5,000,000 derived from any type of
equity and/or debt financing benefiting Maker, other than the project financing
for the construction of Maker's initial plant facility in Wellsville, Ohio, in a
maximum principal amount of $85 million. As long as this Note remains
outstanding, Maker shall accept any reasonable financing proposal when presented
to Maker; provided, however, such proposal's reasonableness is to be determined
by the majority of the voting members of the board of directors of Maker acting
in the exercise of their business judgment.
5. Event of Default. An event of default ("Event of Default") shall
exist if:
(a) Maker shall fail to pay any principal of, or any interest
on, this Note or any other amount payable under this Note, when and as the same
shall become due and payable;
(b) any representation or warranty made or deemed made by or
on behalf of Maker in the Security Agreement, or any amendment or modification
thereof or waiver thereunder, or in any report, certificate, financial statement
or other document furnished pursuant to or in connection the Security Agreement,
or any amendment or modification thereof or waiver thereunder, shall prove to
have been incorrect when made or deemed made;
(c) Maker shall fail to observe or perform any covenant,
condition or agreement contained in the Security Agreement;
(d) Maker shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any indebtedness,
individually or in the aggregate, in excess of $100,000 ("Material
Indebtedness"), when and as the same shall become due and payable;
(e) any event or condition occurs that results in any Material
Indebtedness of Maker becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness of Maker, or any
trustee or agent on its or their behalf, to cause any Material Indebtedness of
Maker to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity;
(f) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of Maker or its debts, or of a substantial part of its
assets, under any federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for Maker or
for a substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(g) Maker shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under any
federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (f) of this Section, (iii) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official
for Maker or for a substantial part of its assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
(h) Maker shall become unable, admit in writing its inability
and fail generally to pay its debts as they become due;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $100,000 shall be rendered against Maker and the
same shall remain undischarged for a period of thirty (30) days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of Maker to enforce any
such judgment;
(j) any lien purported to be created under the Security
Agreement shall cease to be, or shall be asserted by Maker or any affiliate
thereof not to be, a valid and perfected lien on the Collateral (as defined in
the Security Agreement), with the priority required by the Security Agreement,
except (i) as a result of the sale or other disposition of the Collateral in a
transaction permitted under the Security Agreement or (ii) as a result of
Payee's failure to maintain possession of any promissory notes or other
instruments delivered to it under the applicable Security Agreement;
(k) there shall occur, in the reasonable judgment of Payee, a
material adverse change in the business, assets or prospects of Maker after the
date hereof;
(l) there shall occur any material loss, theft, damage or
destruction of any of Maker's property or assets not fully covered by insurance;
or
(m) there shall occur a cessation of a substantial part of the
business of Maker for a period which significantly effects its respective
capacity to continue its business on a profitable basis; or Maker shall suffer
the loss or revocation of any license or permit now held or hereafter acquired
by it which is necessary to the continued or lawful operation of its respective
business; or Maker shall be enjoined, restrained or in any way prevented by
court, governmental or administration order from conducting all or any material
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part of its respective business affairs; or any material part of Maker's
property shall be taken through condemnation or the value of such property shall
be materially impaired through condemnation.
6. Remedies Upon an Event of Default.
(a) Acceleration.
(i) If an Event of Default described in paragraphs
(a), (f) and (g) of Section 5 has occurred, and at any time thereafter during
the continuance of such event, the Payee may declare the then outstanding
amounts hereunder to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable) and thereupon the principal of the amounts hereunder so
declared to be due and payable, together with accrued interest thereon and all
other obligations of Maker accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by Maker;
(ii) If any other Event of Default described in
Section 5 has occurred, Payee shall deliver notice of such event to Maker and
thereupon Maker shall have twenty (20) calendar days to cure such Event of
Default, or Events of Default ("Cure Period"). If Maker does not cure the Event
of Default, or Events of Default, during the Cure Period, then at any time
thereafter during the continuance of such event, the Payee may declare the then
outstanding amounts hereunder to be due and payable in whole (or in part, in
which case any principal not so declared to be due and payable may thereafter be
declared to be due and payable) and thereupon the principal amounts hereunder so
declared to be due and payable, together with accrued interest thereon and all
other obligations of Maker accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by Maker.
(b) Remedies Cumulative. The remedies available to Payee, as
provided herein, shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Payee, and may
be exercised as often as occasion therefor shall arise. No act of omission or
commission of Payee, including specifically any failure to exercise any right,
remedy or recourse, shall be deemed to be a waiver or release of the same, such
waiver or release to be effected only through a written document executed by
Payee and then only to the extent specifically recited therein. A waiver or
release with reference to any one event shall not be construed as continuing, as
a bar to, or as a waiver or release of, any subsequent right, remedy or recourse
as to a subsequent event.
7. Notices. Except as otherwise provided for herein, any notice or
demand which, by the provisions hereof, is required or which may be given to or
served upon Maker or Payee shall be in writing and, if by telecopy, shall be
deemed to have been validly served, given or delivered when transmitted with a
copy immediately mailed by registered or certified mail, if by personal
delivery, shall be deemed to have been validly served, given or delivered upon
actual delivery and, if mailed, shall be deemed to have been validly served,
given or delivered three (3) business days after deposit in the United States
mails, as registered or certified mail, with proper postage prepaid and
addressed to the party to be notified, at the addresses last given in writing by
Maker or Payee.
8. Successors and Assigns. This Note shall be binding upon Maker and
its successors and assigns (including, without limitation, a receiver, trustee
or debtor-in-possession of or for Maker) and shall inure to the benefit of Payee
and its successors and assigns. Maker may not assign its rights hereunder
without the prior written consent of Payee, in its sole discretion, other than
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by operation of law. Payee may assign all or a part of its interest in this Note
or its rights hereunder to any party without the prior written consent of Maker.
9. GOVERNING LAW. THIS NOTE SHALL BE DEEMED A CONTRACT AND INSTRUMENT
MADE UNDER THE LAWS OF THE STATE OF TEXAS AND ACCEPTED BY PAYEE IN SAID STATE,
AND ANY AND ALL CLAIMS, DEMANDS OR ACTIONS IN ANY WAY RELATING THERETO OR
INVOLVING ANY DISPUTE BETWEEN ANY OF THE PARTIES TO THIS NOTE, WHETHER ARISING
IN CONTRACT OR TORT, AT LAW, IN EQUITY OR STATUTORILY, SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND/OR GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(EXCEPTING ITS CHOICE OF LAW RULES) AND THE LAWS OF THE UNITED STATES OF
AMERICA.
10. Severability. If any provisions of this Note or any payments
pursuant to the terms hereof shall be invalid or unenforceable to any extent,
the remainder of this Note and any other payments hereunder shall not be
affected thereby and shall be enforceable to the greatest extent permitted by
law. Furthermore, in lieu of such invalid or unenforceable provisions, there
shall be added automatically as part of this Note, a provision or provisions as
similar in its or their terms to such invalid or unenforceable provisions as may
be possible and be legal, valid and enforceable.
11. No Oral Agreements. This Note and the Security Agreement as written
represent the final agreement between Maker and Payee with respect to the
matters contained herein and therein and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements between Maker and Payee.
There are no unwritten agreements between Maker and Payee.
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IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the date and year first above written.
MAKER:
PROBEX CORP.,
a Delaware corporation
By:_________________________________
Name:_______________________________
Title:______________________________
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Allonge to Secured Promissory Note
_____________ ("Payee") executes this allonge to that certain Secured
Promissory Note dated as of _______, 2001 (the "Note"), made by Probex Corp. in
favor of Payee, to provide as follows:
1. The following sentence shall be added to Section 1 of the Note to read
as follows:
"If Maker shall not pay in full the outstanding principal balance and
accrued and unpaid interest due under this Note on or prior to
September 1, 2001, this Note and the accrued and unpaid interest, at
the Adjusted Interest Rate (as defined in Section 2), shall be due and
payable in one lump sum on December 31, 2001."
2. The following sentence shall be added to Section 2 of the Note to read
as follows:
"If the outstanding principal balance and all accrued and unpaid
interest due under this Note is not paid in full on or prior to
September 1, 2001, the interest rate on this Note shall be adjusted
(the "Adjusted Interest Rate") retroactively such that the principal
amount outstanding from time to time hereunder shall bear interest
calculated on the basis of a 365-day year, at a rate equal to twelve
percent (12%) per annum."
All capitalized terms not defined herein shall have the meaning ascribed to them
in the Note.
Dated: August ___, 2001
MAKER:
PROBEX CORP.
By: ______________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President
PAYEE:
By: ________________________
Name:_______________________
Title:______________________
Second Allonge to Secured Promissory Note
_____________ ("Payee") executes this allonge to that certain Secured
Promissory Note dated as of _______, 2001 (the "Note"), made by Probex Corp. in
favor of Payee, to provide as follows:
1. The last sentence of Section 1 of the Note, as previously modified by
Allonge to Secured Promissory Note, shall be amended to read in its
entirety as follows:
"If Maker shall not pay in full the outstanding principal balance and
accrued and unpaid interest due under this Note on or prior to
September 1, 2001, this Note and the accrued and unpaid interest, at
the Adjusted Interest Rate (as defined in Section 2), shall be due and
payable in one lump sum on January 31, 2002."
All capitalized terms not defined herein shall have the meanings ascribed to
them in the Note.
Dated: December ___, 2001
MAKER:
PROBEX CORP.
By: _____________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President
PAYEE:
By: ________________________
Name: ________________________
Title: ________________________
