DELTA MUTUAL, INC. AMENDED AND RESTATED 8% TERM NOTE
EXHIBIT
10.33e
DELTA
MUTUAL, INC.
AMENDED
AND RESTATED 8% TERM NOTE
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$_______
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March
6, 2008
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Sellersville,
Pennsylvania
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FOR
VALUE
RECEIVED, DELTA MUTUAL INC., a Delaware corporation (the "Company"), with
offices at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, promises to pay
_____________________ (the "Lender"), in care of __________ in lawful money
of
the United States of America, the principal sum of ______Thousand Dollars
($_______), together with interest from
the
date of this Note on the unpaid principal balance at a rate equal to eight
percent (8%) per annum, computed on the basis of a year of 360 days. The
principal amount, shall be due and payable in seven installments, each in the
amounts indicated on (i) the Payment Dates (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 Lender or made automatically due and
payable in accordance with the terms hereof.
By
acceptance of this Amended and Restated Term Note (the “Note”), the Lender
acknowledges and agrees that it replaces and supercedes, in its entirety, that
certain 8% Term Note, issued by the Company to __________in the principal amount
of $_____, dated April 5, 2005, as amended (the “Original
Note”).
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:
1.1
"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.
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1.2
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"Event
of Default" has the meaning given in Section 6
hereof.
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1.3
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"Lender"
shall mean the Person specified in the introductory paragraph of
this
Note.
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1.4
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"Payment
Dates" shall mean: $_____ on May 6, 2008;
and six equal monthly payments of $_____; each due on the 6th
day of the months of June through and including November
2008.
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1.5
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“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.
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1.6
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“Person"
shall mean and include an individual, a partnership, a corporation
(including a business trust), a joint stock company, a limited company,
an
unincorporated association, a joint venture, any other entity or
a
governmental authority.
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2.
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Interest.
All accrued and unpaid interest on this Note shall be waived by the
Lender
provided
the Company has made the payments of the principal amount as set
forth in
Section 1.4 above; otherwise all accrued and unpaid interest (calculated
form the date hereof) shall be due and payable on November 5, 2008
(the
“Maturity Date”) or as otherwise provide in this
Note.
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3.
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Seniority.
This Note shall be senior to all general obligations of the Company
including, trade payables and other obligations incurred in the ordinary
course of business.
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4.
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Prepayment
at the Lender’s Option.
At any time prior to the Maturity Date, the Company may repay the
principal amount of this Note, in whole or in part, including any
accrued
interest on this Note, without the prior written consent of the
Lender.
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5.
Representations
and Warranties of The Lender.
The
Lender represents and warrants to the
Company upon the acquisition of the Note as follows:
5.1
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.
5.2
Own
Account.
The
Lender is purchasing this Note for its 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.
6.
Events
of Default.
The
occurrence of any of the following shall constitute an "Event of Default" under
this Note:
6.1
Failure
to Pay.
If the
Company shall fail to pay any principal payment, or any other payment, required
under the terms of this Note on the dates due and such payment shall not have
been made within ten (10) business days of the Company's receipt of written
notice from the Lender of such failure to pay;
6.2
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
6.3
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.
7.
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 6.2 and 6.3) 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 6.2 and 6.3, 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.
8.
Successors
and Assigns.
Subject
to the restrictions on transfer described in Sections 10 and 11 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.
9.
Waiver
and Amendment.
Any
provision of this Note may be amended, waived or modified upon the written
consent of the Company and the Lender.
10.
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.
11.
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.
12.
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 any 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, return
receipt requested, and addressed as aforesaid through the United States Postal
Service (“USPS”), upon receipt; (c)
when
mailed by regular first class mail through the USPS, five days from the mailing
date: (d)
when
delivered by hand, upon delivery; and (e)
when
faxed, upon confirmation of receipt.
13.
Usury.
In the
event any interest is paid on this Note that is deemed to be in excess of the
then legal maximum rate, then that portion of the interest payment representing
an amount in excess of the then legal maximum rate shall be deemed a payment
of
principal and applied against the principal of this Note.
14.
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.
15.
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 Amended and Restated Note to be
issued as of the date first written above.
DELTA
MUTUAL, INC.
a
Delaware corporation
By:
___________________
Name:
Xxxxx X.
Xxxxx
Title:
President
& CEO
