DELTA MUTUAL, INC. 6% PROMISSORY NOTE
EXIBIT
10.37
DELTA
MUTUAL, INC.
$_____
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March
6, 2008
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Sellersville,
Pennsylvania
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FOR
VALUE
RECEIVED, DELTA MUTUAL INC., a Delaware corporation (the "Company"), with
offices at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, promises to pay
to
__________, (the "Lender"), with a mailing address of __________, in lawful
money of the United States of America, the principal sum of __________Thousand
Dollars ($_____), together with interest from the date of this Note on the
unpaid principal balance at a rate equal to six percent (6.0%) per annum,
computed on the basis of a year of 360 days. All unpaid principal, together
with
any then unpaid and accrued interest, shall be due and payable at any time
after
the earlier of each of (i)
the
Maturity Date (as defined below), or (ii)
when,
upon or after the occurrence of an Event of Default (as defined below), such
amounts are declared due and payable by the Lender or made automatically due
and
payable in accordance with the terms hereof.
The
following is a statement of the rights of the Lender and the conditions to
which
this Note is subject, and to which the Lender, by the acceptance of this Note,
agrees:
1.
Definitions. As
used
in this Note, the following capitalized terms have the following
meanings:
1.1
"Company" includes the corporation initially executing this Note and any Person
which shall succeed to or assume the obligations of the Company under this
Note.
1.2
"Event
of
Default" has the meaning given in Section 6
hereof.
1.3
"Lender"
shall mean the Person specified in the introductory paragraph of this Note.
1.4
"Maturity
Date" shall mean six months from the date hereof.
1.5
"Obligations" shall mean all obligations, owed by the Company to the Lender,
now
existing or hereafter arising under or pursuant to the terms of this Note.
1.6 "Person"
shall mean and include an individual, a partnership, a corporation (including
a
business trust), a joint stock Company, a limited liability Company, an
unincorporated association, a joint venture or other entity or a governmental
authority.
2. Interest.
All
accrued and unpaid interest on this note shall be due and payable on the
Maturity Date.
3. Repayment
at the Company’s Option. At
any
time after the date hereof and prior to the maturity Date, the Company my repay
this Note, including all accrued interest, without penalty or premium, in whole
or in part; provided that such repayment will be applied first to the payment
of
unpaid interest accrued n this Note, and second, to payment of the principal
amount of this Note.
4. Representations
and Warranties of The Lender.
The
Lender represents and warrants to the Company upon the acquisition of the Note
as follows:
4.1
Binding
Obligation.
The
Lender has full legal capacity, power and authority to execute and deliver
this
Note and to perform its obligations hereunder. This Note is a valid and binding
obligation of the Lender, enforceable in accordance with its terms, except
as
limited by bankruptcy, insolvency or other laws of general application relating
to or affecting the enforcement of creditors' rights generally and general
principles of equity.
4.2
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Own
Account.
The Lender is purchasing this Note for his own account for investment,
not
as a nominee or agent, and not with a view to, or for resale in connection
with, the distribution thereof. The Lender has such knowledge and
experience in financial and business matters that the Lender is capable
of
evaluating the merits and risks of such investment, is able to incur
a
complete loss of such investment and is able to bear the economic
risk of
such investment for an indefinite period of
time.
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5.
Events
of Default.
The
occurrence of any of the following shall constitute an "Event of Default" under
this Note:
5.1
Failure
to Pay.
If the
Company shall fail to pay any principal or interest payment or any other payment
required under the terms of this Note on the date due and such payment shall
not
have been made within fifteen (15) business days of the Company's receipt of
written notice from the Lender of such failure to pay;
5.2
Voluntary
Bankruptcy or Insolvency Proceedings. The
Company shall (i)
apply
for or consent to the appointment of a receiver, trustee, liquidator or
custodian of itself or of all or a substantial part of its property,
(ii)
be
unable, or admit in writing its inability, to pay its debts generally as they
mature, (iii)
make a
general assignment for the benefit of its or any of its creditors, (iv)
be
dissolved or liquidated, (v)
become
insolvent (as such term may be defined or interpreted under any applicable
statute), (vi)
commence
a voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or consent to any
such relief or to the appointment of or taking possession of its property by
any
official in an involuntary case or other proceeding commenced against it, or
(vii)
take any
action for the purpose of effecting any of the foregoing; or
5.3
Involuntary
Bankruptcy or Insolvency Proceedings. Proceedings
for the appointment of a receiver, trustee, liquidator or custodian of the
Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to the Company or the debts thereof under any
bankruptcy, insolvency or other similar law now or hereafter in effect shall
be
commenced and an order for relief entered or such proceeding shall not be
dismissed or discharged within sixty (60) days of
commencement.
6.
Rights
of The Lender upon Default.
Upon
the occurrence or existence of any Event of Default (other than an Event of
Default referred to in Sections 5.2 and 5.3 and at any time thereafter
during the continuance of such Event of Default, the Lender may, by written
notice to the Company, declare all outstanding Obligations payable by the
Company hereunder to be immediately due and payable without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived. Upon the occurrence or existence of any Event of Default described
in
Sections 5.2 and 5.3, immediately and without notice, all outstanding
Obligations payable by the Company hereunder shall automatically become
immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived. In addition to
the
foregoing remedies, upon the occurrence or existence of any Event of Default,
the Lender may exercise any other right, power or remedy otherwise permitted
to
it by law, either by suit in equity or by action at law, or both.
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7.
Successors
and Assigns.
Subject
to the restrictions on transfer described in Sections 9 and 10 below, the
rights and obligations of the Company and the Lender of this Note shall be
binding upon and benefit the successors, assigns, heirs, administrators and
transferees of the parties.
8.
Waiver
and Amendment.
Any
provision of this Note may be amended, waived or modified upon the written
consent of the Company and the Lender.
9.
Transfer
of this Note.
This
Note may not be sold, assigned or transferred by the Lender. The Company shall
treat the Lender hereof as the owner and holder of this Note for the purpose
of
receiving all payments of principal and interest hereon and for all other
purposes whatsoever, whether or not this Note shall be overdue, and the Company
shall not be affected by notice to the contrary.
10.
Assignment
by The Company.
Neither
this Note nor any of the rights, interests or obligations hereunder may be
assigned, by operation of law or otherwise, in whole or in part, by the Company
without the prior written consent of the Lender.
11.
Notices.
All
notices, requests, demands, consents, instructions or other communications
required or permitted hereunder shall in writing and faxed, mailed or delivered
to each party at the respective addresses or facsimile numbers of the parties.
All such notices and communications shall be effective (a)
when
sent by Federal Express or other overnight service of recognized standing,
on
the business day following the deposit with such service; (b)
when
mailed, by registered or certified mail, first class postage prepaid and
addressed as aforesaid through the United States Postal Service, upon receipt;
(c)
when
delivered by hand, upon delivery; and (d)
when
faxed, upon confirmation of receipt.
12.
Waivers.
The
Company hereby waives notice of default, presentment or demand for payment,
protest or notice of nonpayment or dishonor and all other notices or demands
relative to this instrument.
13.
Governing
Law.
This
Note and all actions arising out of or in connection with this Note shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to the conflicts of law provisions of the
Commonwealth of Pennsylvania, or of any other state.
IN
WITNESS WHEREOF, The Company has caused this Note to be issued as of the date
first written above.
DELTA
MUTUAL, INC.
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a
Delaware corporation
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By:
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Name: Xxxxx
X. Xxxxx
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Title: President
& CEO
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