EXHIBIT C
SG&A NOTE
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$ , 199
FOR VALUE RECEIVED, the undersigned, XXXXXX ACQUISITION CORPORATION, a
Delaware corporation ("Payor"), promises to pay to XXXXXX TECHNOLOGIES
INCORPORATED, a California corporation ("Payee"), or order, the aggregate
principal sum of _______________________ ($____________), together with
interest thereon at the rate of 8.25% per annum until paid, in the manner
hereinafter set forth:
1. Principal and Interest. Principal together with interest thereon
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shall be due and payable in full on __________________ ___, 199__ [six months
after the date hereof].
2. Payments. Each payment shall be credited on interest then due and
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the remainder on principal; and the interest shall thereupon cease upon the
principal so credited. Principal and interest shall be payable in lawful
money of the United States.
3. Costs of Collection. Should Payor fail to pay this Note or any
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portion thereof in a timely manner, Payee shall be entitled to, and Payor
agrees to pay to Payee immediately upon demand therefor by Xxxxx, all costs
and expenses of collection, including, without limitation, attorney's fees and
all other expenses of enforcing payment.
4. Event of Default. The occurrence of any of the following shall be
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deemed to be an event of default ("Event of Default") hereunder:
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(a) any payment due hereunder (whether principal, interest, late
charge or any combination thereof) which is not paid when due;
(b) Xxxxx makes a general assignment for the benefit of
creditors, or becomes insolvent (however such insolvency is evidenced);
(c) any petition for relief under the Bankruptcy Code or similar
state insolvency or debt moratorium statute is filed by or against Payor and
not dismissed within thirty (30) days after filing; or,
(d) any governmental authority, court or court appointed receiver
or officer shall take possession and control of all or a substantial portion
of the property and assets of and affairs of Payor and such possession and
control is not relinquished within ten (10) days.
5. Acceleration. If any Event of Default shall occur for any reason
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whatsoever, Payee, or its assignees, may at any time by a notice in writing to
Payor declare this Note to be immediately due and payable in full, whereupon
it shall become due and payable in full.
6. Late Charge. Any payment of principal and/or interest which is
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not paid on the due date therefor, and which shall remain unpaid after ten
(10) business days written notice of non-payment from Payee to Payor, shall
bear a late charge equal to five percent (5%) of the amount of the installment
of principal and/or interest which is not paid when due. Xxxxx acknowledges
that this late charge represents fair compensation for any loss which would be
sustained by Payee for administrative expenses and cost of money wrongfully
withheld by Payor. Such late charge shall be paid with the unpaid installment
with respect to which it is accrued. In the event that the late charge is
deemed to constitute interest and to exceed the maximum rate of interest
allowable under applicable law, then the obligation to be fulfilled shall be
reduced automatically to the extent necessary to prevent the effective rate of
interest from exceeding the maximum legal rate.
7. Prepayment. At the option of Payor, the principal and interest of
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this Note may be prepaid in whole or in part at any time without premium or
penalty. Any prepayment of principal, if less than the entire outstanding
principal balance, shall be credited against installments thereafter falling
due in inverse order of maturity.
8. Waiver. The rights and remedies of Payee under this Note shall be
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cumulative and not alternative. No waiver by Payee of any right or remedy
under this Note shall be effective unless in a writing signed by Xxxxx.
Neither the failure nor any delay in exercising any right, power or privilege
under this Note will operate as a waiver of such right, power or privilege and
no single or partial exercise of any such right, power or privilege by Xxxxx
will preclude any other or further exercise of such right, power or privilege.
To the maximum extent permitted by applicable law, (a) no claim or right of
Payee arising out of this Note can be discharged by Payee, in whole or in
part, by a waiver or renunciation of the claim or right unless in a writing,
signed by Xxxxx; (b) no waiver that may be given by Payee will be applicable
except in the specific instance for which it is given; and (c) no notice or
demand on Payor will be deemed to be a waiver of any obligation of Payor or
the right of Payee to take further action without notice or demand as provided
in this Note. Payor hereby waives presentment, demand, protest and notice of
dishonor and protest and any other notice of any kind, except as expressly
provided for herein.
9. Notice. Any notice or other communication provided for in this
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Note shall be in writing and sent to the parties named at the addresses listed
below or at such other address as the parties may from time to time in writing
designate.
To Payor: Xxxxxx Acquisition Corporation
c/o Penn Octane Corporation
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy to: Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
To Payee: Xxxxxx Technologies Incorporated
c/x Xxxxxxxxx Holdings, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, XX 00000-0000
Attn.: Xxxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy to: Rodi, Xxxxxxx, Xxxxxxx, Galbraith
& Xxxxxx, A Law Corporation
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx, Xx., Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Any notice or communication that is properly addressed as provided in this
Paragraph, will be deemed received (a) upon delivery, if delivered personally,
(b) on the third business day after deposit in a regular depository of the
United States mail, if delivered by United States registered or certified
first class mail, (c) on the day of transmission, if delivered by facsimile,
unless such transmission is sent after 3:00 p.m. (time of the receiving
party), or on a day which is not a business day of the receiving party, in
which case such transmission will be deemed received on the first business day
after the transmission, and (d) on the first business day of the receiving
party after the delivery to the courier, if delivered by overnight courier.
Any party from time to time may change its address for the purpose of this
provision by furnishing a notice in accordance with this Section.
10. Severability. If any provision of this Note is held invalid or
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unenforceable by any court of competent jurisdiction, the other provisions of
this Note will remain in full force and effect. Any provision of this Note
held unenforceable only in part or degree will remain in full force and effect
to the extent held invalid or unenforceable.
11. Governing Law. This Note shall be governed by the laws of the
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State of California without regard to conflicts of laws principles.
12. Parties in Interest. This Note shall bind Payor and its
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successors and assigns.
13. Security. This Note is guaranteed by Penn Octane Corporation, a
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Delaware corporation ("POC"), pursuant to Section 13.08 of that certain
Purchase Agreement dated March 7, 1997, among Payee and Xxxxxxxxx Holdings,
Inc., a California corporation, on the one hand, and Payor and POC, on the
other hand.
IN WITNESS WHEREOF, the undersigned has duly executed this Note on the
day and year first above written.
XXXXXX ACQUISITION CORPORATION,
a Delaware Corporation
By:
Its:
