SENIOR SECURED NOTE
Exhibit
99.2
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$
____,000
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As
of January 29, 2009
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FOR VALUE RECEIVED, the undersigned,
Patient Safety Technologies, Inc., a Delaware corporation (the “Maker”), with an
office located at 00000 Xxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, hereby
promises to pay to the order of ____________________, [a ______________ company]
[an individual] (the “Noteholder”), with [an office] [an address] located at
(address)___________________________________________, the principal sum of
_________________ Dollars ($XXX,00) plus any accrued interest thereon in lawful
money of the United States.
This note (“Note”) is being purchased
as part of an offering of notes by the Company in accordance with the terms and
conditions of that certain Senior Secured Note and Warrant Purchase Agreement
dated as of the date of this Note between the Maker, the Noteholder and other
Lenders (the “Purchase Agreement”). Any terms not otherwise defined in this Note
shall have the meaning ascribed to them in the Purchase Agreement. The following
is a statement of the terms and conditions to which this Note is subject and to
which the Noteholder by acceptance of this Note agrees:
Unless earlier converted into the
Financing Round pursuant to Section 3.1 of the Purchase Agreement, the
outstanding principal balance of the Note, together with any accrued and unpaid
interest thereon and any other amounts owing by the Maker to Noteholder shall be
due and payable in immediately available funds on the second anniversary of the
date of this Note (the “Maturity Date”).
Interest shall accrue on the
outstanding principal balance of the Note, from and after the date hereof at the
rate of ten percent (10%) per annum and shall be calculated on the basis of a
360-day year and actual days elapsed; provided, however, that after
the occurrence and during the continuance of an Event of Default, such interest
rate shall automatically increase to a per annum rate equal to thirteen percent
(13%). On the first business day following each of the Maker’s fiscal
quarters after the date hereof, all accrued and unpaid interest hereunder shall
be added to the outstanding principal of this Note. In no event shall the
interest charged hereunder, plus any other amounts paid in connection herewith,
exceed the highest rate permissible under any law that a court of competent
jurisdiction shall, in a final determination, deem applicable. Maker
and Noteholder intend legally to agree upon the rate or rates of interest and
manner of payment stated herein; provided, however, that,
anything contained herein to the contrary notwithstanding, if said rate or rates
of interest or manner of payment exceeds the a maximum allowable under
applicable law, then, ipso
facto, as of the date of this Note, Maker is and shall be liable only for
the payment of such maximum as allowed by law, and payment received from Maker
in excess of such legal maximum, whenever received, shall be applied to reduce
the principal balance hereof to the extent of such excess.
The Maker shall have the right, at any
time, to prepay without penalty, in whole or in part, the unpaid principal and
interest due on this Note as of the date of such prepayment.
All payments made pursuant to this Note
shall first be applied to accrued but unpaid interest then outstanding, and then
to principal, and interest thereupon cease to accrue upon the principal amount
so repaid.
The entire unpaid principal balance of
this Note and interest accrued with respect thereto shall be immediately due and
payable upon the occurrence of any of the following (each, an “Event of
Default”):
a. The
filing by Maker of any petition, or commencement by Maker of any proceeding,
under the Title 11 of the United States Code, as in effect from time to time
(the “Bankruptcy Code”) or any state insolvency law;
b. The
failure by Maker to make full and timely payment at the Maturity Date (whether
constituting principal, interest or any other amount);
c. Filing
of any petition, or commencement of any proceeding, under the Bankruptcy Code,
or under any other insolvency law, state or federal, against the Maker, or
appointment of any receiver or trustee, now or hereafter existing, and the
continuance thereof for sixty (60) days undismissed, unbonded, or
discharged;
d. The
making by Maker of any general assignment for the benefit of
creditors;
e. Any
representations or warranties made by the Maker in this Note are untrue in any
material respect, or any schedule, statement, report, notice or writing
furnished by Maker to Noteholder are untrue in any material respect on the date
as of which the facts set forth are stated or certified; or
f. The
Noteholder has received written notice from a Lender (as defined in the Security
Agreement dated as of the date of this Note between the Maker, the Noteholder
and other Lenders) that Maker is in material breach of the Security Agreement
and has not taken action to cure such breach within the later of thirty (30)
days of its receipt of the Lender’s written notice or within such applicable
cure period set forth in the Security Agreement.
All rights and remedies available to
the Noteholder pursuant to the provisions of applicable law and otherwise are
cumulative, not exclusive and are enforceable alternatively, successively and/or
concurrently after default by Maker pursuant to the provisions of this
Note.
To the fullest extent permitted by
applicable law, Maker, for itself and its legal representatives, successors and
assigns, expressly waives presentment, demand, protest, notice of dishonor,
notice of non-payment, notice of maturity, notice of protest, presentment for
the purpose of accelerating maturity, diligence in collection, and the benefit
of any exemption or insolvency laws and consents to the extension of time of
payments, the release, surrender or substitution of any and all security or
guarantees for the obligations evidenced hereby or other indulgence with respect
to this Note, all without notice.
At the option of Xxxxxx, this Note and
any amounts due hereunder may be converted into the Financing Round in
accordance with the terms of Section 3.1 of the Purchase Agreement. As promptly
as practicable after the conversion of this Note, the Company at its expense
shall issue and deliver to the holder of this Note, upon surrender of the Note,
evidence of the securities issued in the Financing Round.
Wherever possible, each provision of
this Note shall be interpreted in such manner as to be effective and valid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or remaining provisions of this Note. No delay or failure on the part
of Noteholder in the exercise of any right or remedy hereunder shall operate as
a waiver thereof, nor as an acquiescence in any default, nor shall any single or
partial exercise by Noteholder of any right or remedy preclude any other right
or remedy.
This Note may not be changed, modified,
or terminated orally, but only by an agreement in writing, signed by Maker and
Noteholders Majority, except as to payment, which shall require the execution by
the Noteholder.
Any transferee or transferees of this
Note, by their acceptance hereof, agree to assume the obligations of the holder
of this Note as set forth herein, and shall be deemed the “Noteholder” for all
purposes hereunder. Maker may not transfer its rights and obligations
under this Note without the prior written consent of Noteholder, such consent to
be provided in the sole and absolute discretion of Noteholder.
This Note and the Purchase Agreement
contains the entire understanding between the Maker and the Noteholder with
respect to this Note and supersedes any prior written or oral agreement between
them respecting the subject matter hereof.
This Note shall be governed by and
construed in accordance with the laws of the state of California and shall be
binding upon the successors and assigns of the Maker and shall inure to the
benefit of the Noteholder, its successors and assigns. All actions
for proceedings arising in connection with this Note, and any other agreement
between the parties hereto now existing or hereinafter made shall be tried and
litigated only in the state and federal courts located in the County of Los
Angeles, the State of California. Maker waives, to the extent
permitted under applicable law, any right such party may have to assert the
doctrine of forum non conveniens or to object to venue to the extent any
proceedings brought in accordance with the provisions of this
paragraph.
In the event of any litigation with
respect to the obligations evidenced by this Note, the Maker waives all right to
a trial by jury. A copy of this Note may be filed as a written consent to a
trial by the court. Xxxxx agrees to pay all reasonable attorneys’
fees and costs and expenses which may be incurred by Noteholder in connection
with the enforcement of this Note or in any way arising out of, or consequential
to, the protection, assertion, or enforcement of Noteholder’s rights hereunder,
irrespective of whether suit is brought.
If any term or provision of this Note
shall be held invalid, illegal or unenforceable, the validity of all other terms
and provisions hereof shall in no way be affected thereby.
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By:
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Name:
Xxxxx Xxxxx
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