EXHIBIT 10.30.1
SECURED PROMISSORY NOTE
$500,000 September 13, 2001
FOR VALUE RECEIVED, this Secured Promissory Note (this "Note") is made
by Probex Corp., a Delaware corporation ("Maker"), to Single Spur Investments,
LLC ("Payee"). This Note is the "Note" defined in, and is entitled to the
benefits of, that certain Security Agreement (the "Security Agreement"), dated
of even date herewith.
1. Payments. Maker hereby promises to pay to the order of Payee the
principal sum of Five Hundred Thousand and no/100 Dollars ($500,000.00) at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or such other place as Payee may
designate from time to time in writing, in lawful money of the United States of
America and in immediately available funds, together with interest on the unpaid
principal balance hereof at the rate provided herein from the date of this Note
until payment in full of the indebtedness evidenced by this Note. This Note and
all accrued and unpaid interest shall be due and payable in one lump sum on
December 31, 2001. Any payment made under this Note shall be applied first to
interest accrued and unpaid on the outstanding principal balance as of such date
of payment and then to the outstanding principal balance due hereunder. If any
required payment hereunder falls due on a Saturday, Sunday or a national or
state bank holiday in Texas, then such date shall be extended to the next
succeeding day that is not a Saturday, Sunday or national or state bank holiday.
2. Interest Rate. The principal amount outstanding from time to time
hereunder shall bear interest calculated on the basis of a 365-day year, at a
rate equal to twelve percent (12%) per annum or, after an Event of Default
hereunder, eighteen percent (18%) per annum.
3. Voluntary Prepayment. This Note may be prepaid, in whole or in part,
without premium or penalty. All prepayments shall be applied first to accrued
interest and then to principal.
4. Mandatory Prepayment. Maker shall be required to prepay this Note
upon the closing of project financing for the construction of Maker's initial
plant facility in Wellsville, Ohio.
5. Event of Default. An event of default ("Event of Default") shall
exist if:
(a) Maker shall fail to pay any principal of, or any interest on, this
Note or any other amount payable under this Note, when and as the same shall
become due and payable;
(b) any representation or warranty made or deemed made by or on behalf
of Maker in the Security Agreement, or any amendment or modification thereof or
waiver thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection the Security Agreement, or any
amendment or modification thereof or waiver thereunder, shall prove to have been
incorrect when made or deemed made;
(c) Maker or any of its subsidiaries shall fail to observe or perform
any covenant, condition or agreement contained in the Security Agreement or this
Note;
(d) Maker or any of its subsidiaries shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
indebtedness, individually or in the aggregate, in excess of $100,000 ("Material
Indebtedness"), when and as the same shall become due and payable;
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(e) any event or condition occurs that results in any Material
Indebtedness of Maker becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any indebtedness for borrowed money of Maker or
any of its subsidiaries, or any trustee or agent on its or their behalf, to
cause any indebtedness for borrowed money of Maker or any of its subsidiaries to
become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity;
(f) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of Maker or any of its subsidiaries or their respective debts, or of
a substantial part of its assets, under any federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Maker or any of its subsidiaries or for a
substantial part of any of their assets, and, in any such case, such proceeding
or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(g) Maker or any of its subsidiaries shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (f) of this Section, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Maker or any of its subsidiaries or for a substantial part
of any of their assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the purpose
of effecting any of the foregoing;
(h) Maker or any of its subsidiaries shall become unable, admit in
writing its inability and fail generally to pay its debts as they become due;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $25,000 shall be rendered against Maker or any of its
subsidiaries and the same shall remain undischarged for a period of thirty (30)
days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of
Maker or any of its subsidiaries to enforce any such judgment;
(j) any lien purported to be created under the Security Agreement shall
cease to be, or shall be asserted by Maker or any affiliate thereof not to be, a
valid and perfected lien on the Collateral (as defined in the Security
Agreement), with the priority required by the Security Agreement, except (i) as
a result of the sale or other disposition of the Collateral in a transaction
permitted under the Security Agreement or (ii) as a result of Payee's failure to
maintain possession of any promissory notes or other instruments delivered to it
under the applicable Security Agreement;
(k) there shall occur, in the reasonable judgment of ▇▇▇▇▇, a material
adverse change in the business, assets or prospects of Maker or any of its
subsidiaries after the date hereof;
(l) there shall occur any material loss, theft, damage or destruction
of any of Maker's or any of its subsidiaries' property or assets not fully
covered by insurance;
(m) there shall occur a cessation of a substantial part of the business
of Maker or any of its subsidiaries for a period which significantly effects its
capacity to continue its business on a profitable basis; or Maker or any of its
subsidiaries shall suffer the loss or revocation of any license or permit now
held or hereafter acquired by it which is necessary to the continued or lawful
operation of its respective business; or Maker or any of its subsidiaries shall
be enjoined, restrained or in any way prevented by court, governmental or
administration order from conducting all or any material part of its respective
business affairs; or any material part of Maker's or any of its subsidiaries'
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property shall be taken through condemnation or the value of such property shall
be materially impaired through condemnation;
(n) Maker's common stock shall cease to be listed on any national
securities exchange or reported by the NASDAQ National Market System or Small
Cap Market System; or
(o) Maker shall receive a "going concern" opinion from its independent
auditors, or, after giving effect to proceeds of this Note, otherwise does not
have sufficient available working capital to ensure viability.
6. Remedies Upon an Event of Default.
(a) Acceleration.
(i) If an Event of Default described in paragraph (f) or (g)
of Section 5 hereof shall occur, this Note and the obligation to pay the
principal and accrued interest hereunder shall automatically become immediately
due and payable without any action or notice on the part of the Payee.
(ii) If an Event of Default described in paragraphs (a), (b),
(d), (e), (h), (i), (j), (k), (l) or (m) of Section 5 hereof has occurred, and
at any time thereafter during the continuance of such event, the Payee may
declare the then outstanding amounts hereunder to be due and payable in whole
(or in part, in which case any principal not so declared to be due and payable
may thereafter be declared to be due and payable) and thereupon the principal of
the amounts hereunder so declared to be due and payable, together with accrued
interest thereon and all other obligations of Maker accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by Maker;
(iii) If any other Event of Default described in Section 5 has
occurred, Payee shall deliver notice of such event to Maker and thereupon Maker
shall have twenty (20) calendar days to cure such Event of Default, or Events of
Default ("Cure Period"). If Maker does not cure the Event of Default, or Events
of Default, during the Cure Period, then at any time thereafter during the
continuance of such event, the Payee may declare the then outstanding amounts
hereunder to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable) and thereupon the principal amounts hereunder so declared to be
due and payable, together with accrued interest thereon and all other
obligations of Maker accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by Maker.
(b) Remedies Cumulative. The remedies available to Payee, as
provided herein, shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Payee, and may
be exercised as often as occasion therefor shall arise. No act of omission or
commission of Payee, including specifically any failure to exercise any right,
remedy or recourse, shall be deemed to be a waiver or release of the same, such
waiver or release to be effected only through a written document executed by
▇▇▇▇▇ and then only to the extent specifically recited therein. A waiver or
release with reference to any one event shall not be construed as continuing, as
a bar to, or as a waiver or release of, any subsequent right, remedy or recourse
as to a subsequent event.
7. Notices. Except as otherwise provided for herein, any notice or
demand which, by the provisions hereof, is required or which may be given to or
served upon Maker or Payee shall be in writing and, if by telecopy, shall be
deemed to have been validly served, given or delivered when transmitted with a
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copy immediately mailed by registered or certified mail, if by personal
delivery, shall be deemed to have been validly served, given or delivered upon
actual delivery and, if mailed, shall be deemed to have been validly served,
given or delivered three (3) business days after deposit in the United States
mails, as registered or certified mail, with proper postage prepaid and
addressed to the party to be notified, as set forth in the Security Agreement.
8. Successors and Assigns. This Note shall be binding upon Maker and
its successors and assigns (including, without limitation, a receiver, trustee
or debtor-in-possession of or for Maker) and shall inure to the benefit of Payee
and its successors and assigns. Maker may not assign its rights hereunder
without the prior written consent of ▇▇▇▇▇, in its sole discretion, other than
by operation of law. Payee may assign all or a part of its interest in this Note
or its rights hereunder to any party without the prior written consent of Maker.
9. GOVERNING LAW. THIS NOTE SHALL BE DEEMED A CONTRACT AND INSTRUMENT
MADE UNDER THE LAWS OF THE STATE OF TEXAS AND ACCEPTED BY PAYEE IN SAID STATE,
AND ANY AND ALL CLAIMS, DEMANDS OR ACTIONS IN ANY WAY RELATING THERETO OR
INVOLVING ANY DISPUTE BETWEEN ANY OF THE PARTIES TO THIS NOTE, WHETHER ARISING
IN CONTRACT OR TORT, AT LAW, IN EQUITY OR STATUTORILY, SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND/OR GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(EXCEPTING ITS CHOICE OF LAW RULES) AND THE LAWS OF THE UNITED STATES OF
AMERICA.
10. Severability. If any provisions of this Note or any payments
pursuant to the terms hereof shall be invalid or unenforceable to any extent,
the remainder of this Note and any other payments hereunder shall not be
affected thereby and shall be enforceable to the greatest extent permitted by
law. Furthermore, in lieu of such invalid or unenforceable provisions, there
shall be added automatically as part of this Note, a provision or provisions as
similar in its or their terms to such invalid or unenforceable provisions as may
be possible and be legal, valid and enforceable.
11. No Oral Agreements. This Note and the Security Agreement as written
represent the final agreement between Maker and Payee with respect to the
matters contained herein and therein and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements between Maker and ▇▇▇▇▇.
There are no unwritten agreements between Maker and Payee.
[REMAINDER OF ▇▇▇▇ LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the date and year first above written.
MAKER:
PROBEX CORP.,
a Delaware corporation
By:_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
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Allonge to Secured Promissory Note
Single Spur Investments, LLC ("Payee") executes this allonge to that
certain Secured Promissory Note dated as of September 13, 2001 (the "Note"),
made by Probex Corp. in favor of ▇▇▇▇▇, to provide as follows:
1. Section 1 of the Note shall be amended to read in its entirety as
follows:
"1. Payments. Maker hereby promises to pay to the order of Payee the
principal sum of Five Hundred Thousand and no/100 Dollars ($500,000.00)
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or such other place as
Payee may designate from time to time in writing, in lawful money of
the United States of America and in immediately available funds,
together with interest on the unpaid principal balance hereof at the
rate provided herein from the date of this Note until payment in full
of the indebtedness evidenced by this Note. This Note and all accrued
and unpaid interest shall be due and payable in one lump sum on January
31, 2002. Any payment made under this Note shall be applied first to
interest accrued and unpaid on the outstanding principal balance as of
such date of payment and then to the outstanding principal balance due
hereunder. If any required payment hereunder falls due on a Saturday,
Sunday or a national or state bank holiday in Texas, then such date
shall be extended to the next succeeding day that is not a Saturday,
Sunday or national or state bank holiday."
All capitalized terms not defined herein shall have the meanings ascribed to
them in the Note.
Dated: December ___, 2001
MAKER:
PROBEX CORP.
By: ________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
PAYEE:
By: ________________________
Name: ________________________
Title: ________________________
