FORM OF PROMISSORY NOTE
EXHIBIT
10.23
FORM
OF PROMISSORY NOTE
$_____________
____________, 2007
____________________________
(“Maker”)
promises to pay to the order of [CRT Capital Group LLC and/or I-Bankers
Securities, Inc.] (the “Payee”)
the
principal sum of ________________________ ($_____________) in lawful money
of
the United States of America, on the terms and conditions described below.
Terms
used but not defined herein shall have the meanings set forth in the
Registration Statement on Form S-1 filed in connection with the Company’s
initial public offering declared effective by the Securities and Exchange
Commission (the “Registration
Statement”).
1. Principal;
Security.
(a) The
principal balance of this Note shall be repayable on the fifth Business Day
(as
defined below) after the date that all of the Maker’s shares of common stock of
the Company are released from escrow to Maker in accordance with the terms
and
conditions outlined in the Letter Agreement dated February 16, 2007 (the
“Maturity
Date”).
“Business
Day”
means
a
day other than a Saturday, Sunday or other day on which commercial banking
institutions are authorized or required by law to close in New York
City.
(b)
The
obligations under this Note shall be secured by a pledge of certain founder
warrants pursuant to a pledge agreement entered into by Maker and Payee herewith
(the “Pledge Agreement”).
2.
Assignment
of Warrants.
Within
five (5) Business Days after of the consummation of a Business Combination,
Maker shall assign and transfer to Payee an aggregate of ___________ founder
warrants (as defined in the Registration Statement) purchased by Maker in
connection with the Registration Statement. Such
founder warrants, if transferred to Payee, may not be sold, transferred,
assigned, pledged or hypothecated, or be the subject of any hedging, short
sale,
derivative, put or call transaction that would result in the effective economic
disposition of the securities by any person, for a period of 18 months following
the effective date of the Registration Statement, except to any underwriter
and
selected dealer participating in the offering and their bona fide officers
or
partners.
3. Waiver
and Release of Maker Obligations.
Payee hereby waives and releases Maker of any and all payment or other
obligation under this Note, including the payment of principal of this
Note pursuant to paragraph
1
above
and the transfer or assignment of any founder warrants held by Maker pursuant
to
paragraph
2
above,
in the event that the Company does not consummate a Business
Combination and dissolves and liquidates. Such waiver and release shall
automatically and immediately become effective upon such dissolution or
liquidation without any action on the part of Maker. For the avoidance of doubt,
this Note shall be terminated and no Event of Default under Section
4
possible
after a waiver and release under this Section
3
becomes
effective.
4.
Events
of Default.
The
following shall constitute Events of Default:
(a)
Failure
to Make Required Payments.
Failure
by Maker to pay the principal of this Note within five (5) Business Days
following the date when due.
(b) Voluntary
Bankruptcy, Etc.
The
commencement by Maker of a voluntary case under applicable bankruptcy law,
or
any other applicable insolvency, reorganization, rehabilitation or other similar
law, or the consent by it to the appointment of, or taking possession by, a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of Maker or for any substantial part of its property, or the
making by it of any assignment for the benefit of creditors, or the failure
of
Maker generally to pay its debts as such debts become due, or the taking of
corporate action by Maker in furtherance of any of the foregoing.
(c)
Involuntary
Bankruptcy, Etc.
The
entry of a decree or order for relief by a court having jurisdiction in the
premises in respect of Maker in an involuntary case under applicable bankruptcy
law, or any other applicable insolvency or other similar law, or appointing
a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of Maker or for any substantial part of its property, or ordering
the
winding-up or liquidation of the affairs of Maker, and the continuance of any
such decree or order unstayed and in effect for a period of 60 consecutive
days.
(a) Upon
the
occurrence and during the continuation of an Event of Default, a default
interest rate on all unpaid amounts hereunder shall accrue monthly in arrears
(computed on the basis of a 365-day year for the actual number of days
elapsed)
from the date of such Event of Default until paid in full at the rate of
three
percent
(3%)
per
annum above the Prime Rate. Prime Rate shall mean the prime rate (the base
rate
on corporate loans at large U.S. money center commercial banks) as published
in
the Money Rates section of the Wall Street Journal or other equivalent
publication if the Wall Street Journal no longer publishes such information
(if
more than one such prime rate is published on any given day, the lowest
of such
published rates shall be the Wall Street Journal Prime Rate. Upon
the
occurrence and during the continuation of an Event of Default, the Payee
shall
have then, or at any time thereafter, all of the rights and remedies afforded
by
the Uniform Commercial Code as from time to time in effect in the State
of New
York or afforded by other applicable law. The holder of this Note may not
enforce this Note except as provided herein.
(b)
Upon
the
occurrence of an Event of Default specified in Section
4(a),
Payee
may, by written notice to Maker, declare this Note to be due and payable,
whereupon the principal amount of this Note, and all other amounts payable
hereunder, shall become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived,
anything contained herein or in the documents evidencing the same to the
contrary notwithstanding.
(c)
Upon
the
occurrence of an Event of Default specified in Sections
4(b)
and
5(c),
the
unpaid principal balance of, and all other sums payable with regard to, this
Note shall automatically and immediately become due and payable, in all cases
without any action on the part of Payee.
6.
Waivers.
Maker
waives presentment for payment, demand, notice of dishonor, protest, and notice
of protest with regard to this Note, all errors, defects and imperfections
in
any proceedings instituted by Payee under the terms of this Note, and all
benefits that might accrue to Maker by virtue of any present or future laws
exempting any property, real or personal, or any part of the proceeds arising
from any sale of any such property, from attachment, levy or sale under
execution, or providing for any stay of execution, exemption from civil process
or extension of time for payment; and Maker agrees that any real estate that
may
be levied upon pursuant to a judgment obtained by virtue hereof, on any writ
of
execution issued hereon, may be sold upon any such writ in whole or in part
in
any order desired by Xxxxx.
7. Unconditional
Liability.
Maker
hereby waives all notices in connection with the delivery, acceptance,
performance, default or enforcement of the payment of this Note, and agrees
that, except for the consummation of a Business Combination by ATAC, its
liability shall be unconditional, without regard to the liability of any other
party, and shall not be affected in any manner by any indulgence, extension
of
time, renewal, waiver or modification granted or consented to by Payee, and
consents to any and all extensions of time, renewals, waivers or modifications
that may be granted by Xxxxx with respect to the payment or other provisions
of
this Note, and agrees that additional makers, endorsers, guarantors or sureties
may become parties hereto without notice to them or affecting their liability
hereunder.
8.
Notices.
Any
notice called for hereunder shall be deemed properly given if (i) sent by
certified mail, return receipt requested, (ii) personally delivered, (iii)
dispatched by any form of private or governmental express mail or delivery
service providing receipted delivery, (iv) sent by telefacsimile, or (v) sent
by
e-mail, to the following addresses or to such other address as either party
may
designate by notice in accordance with this Section:
If
to
Maker:
[Name]
[Address]
If
to
Payee:
2
Notice
shall be deemed given on the earlier of actual receipt by the receiving party,
if sent by certified mail, and (i) five (5) Business Days after certification
thereof, (ii) if personally delivered, the date reflected on a signed delivery
receipt, (iii) if sent by private or governmental express mail or delivery
service, three (3) Business Days following tender of delivery or dispatch by
express mail or delivery service, (iv) if by facsimile, the date shown on a
telefacsimile transmission confirmation, or (v) if sent by email, the date
on
which an e-mail transmission was received by the receiving party's on-line
access provider.
9.
Construction;
Jurisdiction.
This
Note shall be construed and enforced in accordance with the domestic, internal
law, but not the law of conflict of laws, of the State of New York. With
respect to any suit, action or proceeding relating to this Note or the Pledge
Agreement, Maker irrevocably (a) submits to the jurisdiction of the courts
in
the State of New York and the United States District Court located in the
Borough of Manhattan in New York City; and (b) waives any objection which it
may
have at any time to the laying of venue of any such suit, action or proceeding
brought in any such court, waives any claim that any such suit, action or
proceeding has been brought in an inconvenient forum and further waives the
right to object with respect to any such suit, action or proceeding that such
court does not have any jurisdiction over it.
10.
Severability.
Any
provision contained in this Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
IN
WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this
Note to be duly executed the day and year first above written.
[MAKER]
By:
________________________
Name:
Title:
3
