Exhibit 4.10
DELTA MUTUAL, INC.
8% TERM NOTE
$____ April 5, 2005
Sellersville, Pennsylvania
FOR VALUE RECEIVED, DELTA MUTUAL INC., a Delaware corporation (the
"Company"), with offices at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000,
promises to pay to __________________, (the "Lender"), of _____________________
in lawful money of the United States of America, the principal sum of
________________________ Dollars ($)), together with interest from the date of
this Note on the unpaid principal balance at a rate equal to eight percent
(8.0%) per annum, computed on the basis of the actual number of days elapsed and
a year of 365 days and compounded quarterly on the last day of each calendar
quarter. All unpaid principal, together with any unpaid and accrued interest,
shall be due and payable at any time after the earlier 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 each October 2, 2005.
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 the Company, a limited
liability the 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 Dates.
3. 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.
4. Repayment at the Company's Option. At any time prior to the Maturity
Dates, the Company may repay this Note, including all interest accrued on this
Note, without penalty or premium, in whole or in part; provided that any such
repayment will be applied first to the payment of unpaid interest accrued on
this Note and second, to the payment of principal of this Note.
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 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; 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 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.
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 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
