EXHIBIT 10.22
PROMISSORY NOTE
$100,000.00 October 5, 2004
ULTRASTRIP SYSTEMS, INC., a Florida corporation ("Maker") (Maker and each
endorser, surety or guarantor, are collectively herein called "Obligor"),
promises to pay to the order of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ("Lender";
Lenders and each and all subsequent holders of this note are included in the
terms "Holder"), at ▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (or at such other
place as the Holder hereof may designate), the sum of ONE HUNDRED THOUSAND AND
00/00 DOLLARS ($100,000.00) with interest at the Applicable Interest Rate, as
defined below. Interest on principal will accrue at the Applicable Interest Rate
from October 5, 2004 at the rate of 1/360th of annual interest for each day that
principal is outstanding; provided, however, in no event shall interest be due
at a rate in excess of the maximum permissible legal rate.
Principal and interest shall be payable as follows:
a. The entire outstanding principal balance of the note and
interest shall be due and payable in full on or before
November 5, 2004 (the "Maturity Date"). It is the intent of
this agreement to transfer the principal loan amount to the
financing package being prepared by ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
pursuant to the rough draft document dated September 28, 2004
and attached as Exhibit "A".
b. The "Applicable Interest Rate" shall be six percent (6%) per
annum.
c. This note may be prepaid at any time in whole or in part,
without premium or penalty.
As used in this instrument, the term "Obligations" shall refer to the
indebtedness represented by this note and all modifications, renewals and
substitutions hereof.
The happening of any of the following events shall constitute a default
hereunder: (1) failure of Obligor to pay in full when due any indebtedness,
obligation, or liability to the Holder whatsoever, or any installment thereof or
interest thereon; (2) failure of Obligor to perform any agreement hereunder; (3)
the Holder learns that any warranty, representation, certificate or statement of
Obligor (whether contained in this note or not) pertaining to or in connection
with this note or the loan or credit evidenced by this note, is not true; (4)
Obligor becomes insolvent or any insolvency proceedings (as said terms
"insolvent" and "insolvency proceedings" are defined in the Uniform Commercial
Code of Florida) are instituted or made by or against Obligor, or application is
made for the appointment of a receiver for Obligor or for any of the assets of
Obligor; (5) the entry of a judgment against Obligor; (6) the issuing of any
levy, attachment or garnishment, or the filing of any lien against any property
of Obligor; or (7) the dissolution, merger, consolidation, or reorganization of
Obligor.
Upon the happening of any default as defined herein the entire amount of this
note remaining unpaid, shall, at the option of the Holder and without notice or
demand, become due and payable forthwith or thereafter. In the event of any
default hereunder, after deducting any paid and unaccrued or paid and unearned
interest from the principal balance then due, the then unpaid principal balance
hereof and any accrued and unpaid interest shall bear interest from the time of
such default at the maximum legal rate permissible (the "Default Rate"), and,
regardless of the payment terms of the note, and all unpaid interest from the
time of such default may be compounded on a monthly basis, the first such
compounding to be made 30 days after the default and, thereafter, on the same
date of each subsequent month until all Obligations have been paid in full. In
no event and under no circumstances shall there be due hereunder, nor shall the
Holder be entitled hereunder to receive at any time, any charges not allowed or
permitted by law or any interest or interest rate in excess of the maximum
allowed by law. In the event that the amount of any charge or payment due
hereunder shall create or shall be deemed to create an interest charge in excess
of the maximum permissible legal rate, then the charge of any such excess amount
shall be deemed unenforceable and void and its collection shall be waived,
without affecting the remainder of the Obligations evidenced hereby, and any
such excess amount which may have been paid to the Holder shall be refunded.
In the event the Holder shall be required at any time to pay documentary stamp
tax, intangible tax, or other taxation with respect to all or part of the Loan
or any other transaction contemplated or evidenced by this note, the Obligor
shall reimburse the Holder immediately for all such costs, including any
interest and penalties with respect thereto.
With respect to any and all Obligations, the Obligor waives the following: (1)
demand, presentment, protest, notice of dishonor, suit against any party and all
other requirements necessary to charge or hold Obligor liable on any Obligation;
(2) any further receipt for or acknowledgment of the Collateral now or hereafter
deposited or statement of indebtedness; (3) the right to interpose any set-off
or counterclaim of any nature or description in any litigation in which the
Holder and Obligor shall be adverse parties. The Obligor agrees that any
Obligations of Obligor may, from time to time, in whole or in part, be renewed,
extended, modified, accelerated, compromised, discharged or released by the
Holder, all without notice to or further reservations of rights against Obligor
and all without in any way affecting or releasing the liability of Obligor. The
Obligor agrees to pay all taxes and assessments levied on or with respect to the
Obligations, this note, including but not limited to intangible and documentary
stamp taxes, and all filing fees and taxes and all costs of collecting or
securing or attempting to collect or secure any Obligations, including
attorneys' fees, whether or not involving litigation and/or appellate
proceedings.
The Holder shall not by any act, delay, omission or otherwise be deemed to have
waived any of its rights or remedies, and no waiver of any kind shall be valid,
unless in writing and signed by the Holder. All rights and remedies of the
Holder under the terms of this note and under any statutes or rules of law shall
be cumulative and may be exercised successively or concurrently. The Obligor
agrees that the Holder shall be entitled to all the rights of a holder in due
course of a negotiable instrument. This note shall be governed by and construed
in accordance with the laws of the State of Florida. Any provision of this note,
which may be unenforceable or invalid under any law, shall be ineffective to the
extent of such unenforceability or invalidity without affecting the
enforceability or validity of any other provision hereof. Any notice required to
be given to any person shall be deemed sufficient if mailed, postage prepaid, to
such person's address as it appears on this note, or, if none appears, to any
address in the Holder's files. The Holder shall have the right unilaterally to
correct patent errors in this note and to fill in any blank spaces herein so as
to conform to the terms upon which the loan evidenced hereby is made.
The Obligor shall be liable for all indebtedness represented by this note and
have subscribed their names hereto without condition that anyone else should
sign or become bound hereon and without any other condition whatever being made.
The provisions of this note are binding on the heirs, executors, administrators,
assigns and successors of Obligor and shall inure to the benefit of the Holder,
its successors and assigns. This note is executed under the seal of the Obligor.
This promissory note constitutes and evidences the complete understanding
between the Holder and the Obligor. All prior and contemporaneous discussions
between the Holder and the Obligor, including all
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representations and promises by the Holder, whether oral or written, concerning
the Obligations, are included in and merged in this note. Any modification
thereof hereafter which is not in writing and signed by the Holder and the
Obligor shall be void, except that the Holder may in its sole discretion extend
the maturity of the loan evidenced by this note for a term specified in a
written notification mailed to the Obligor at its address shown on the Holder's
records. The Holder may rely on the information, instructions, or other
communications (including requests for and directions concerning loan advances)
given to the Holder by the Obligor.
Notwithstanding anything herein to the contrary, Holder agrees, by acceptance
of this note, to forbear acceleration of the unpaid principal balance hereof (a)
for a period of 10days for the failure of the Obligor to make a payment when due
hereunder. Such forbearance shall not deny or in any way mitigate the occurrence
of a default, unless the Obligor, within the applicable forbearance period,
cures such default to Holder's satisfaction, in which event the Loan shall
thereupon be reinstated and restored to good standing in all respects, including
the interest rate hereon, effective as of the date of the default.
No invalid provision of this note shall affect or impair any other provision.
Maker and Obligor acknowledge receipt of a completed copy of this Note.
THE OBLIGOR AND, BY ITS ACCEPTANCE HEREOF, THE HOLDER, EACH HEREBY WAIVES (1)
ALL RIGHTS TO RELY ON OR ENFORCE ANY ORAL STATEMENTS MADE PRIOR TO,
CONTEMPORANEOUSLY WITH OR SUBSEQUENT TO THE SIGNING OF THIS PROMISSORY NOTE; AND
(2) THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS PROMISSORY NOTE, OR WITH
RESPECT TO DEALINGS BETWEEN THE HOLDER AND THE OBLIGOR CONCERNING ANY COURSE OF
CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE HOLDER TO PROVIDE CREDIT TO THE
OBLIGOR.
Lender UltraStrip Systems, Inc.
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________________________ _____________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
________________________
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT A
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CONFIDENTIAL DRAFT (9/28/04) - FOR DISCUSSION
[REVISED PER ▇▇▇▇▇▇▇ COMMENTS]
ULTRASTRIP SYSTEMS, INC.
UNSECURED BRIDGE NOTES WITH WARRANTS
------------------------------------
New Security: Unsecured Bridge Notes due November 1, 2005 with
attached warrants.
Principal Amount: Up to $5 million.
Use of Proceeds: To fund operating and working capital needs
of UltraStrip in accordance with its
strategic plan, including formation of
strategic and marketing joint ventures in
water filtration, auto stripping, and ship
maintenance, and to pursue actively a
"Liquidity Event" in next 12 months.
Minimum Purchase: Minimum individual purchase of $100,000 by
"accredited investors" in an exempt private
placement. Payment by cash or tender of
existing demand indebtedness owed to
the investor.
The ▇▇▇▇▇▇▇'▇, founders of the Company, have
committed to purchase for cash $500,000
principal amount of the new Notes and to
tender existing indebtedness in the amount
of $800,000 for a like amount of new Notes.
Interest: Interest would accrue on the unpaid principal
amount of the Note at the rate of 5% per
annum.
Maturity: November 1, 2005.
Collateral: None.
Covenants: None.
Prepayment:
Optional: The Notes together with any accrued but
unpaid interest may be prepaid at any time
for cash, subject to the right of holders of
the Notes to convert into shares of common
stock of the Company prior to any optional
repayment.
Mandatory: The Notes together with any accrued but unpaid
interest would be subject to mandatory
prepayment in full upon a Liquidity Event.
Conversion: Each holder of the Notes is entitled to
convert, at any time, the principal amount
of the outstanding Notes held by such
investor at the conversion rate of $1.25 per
share of common stock. For example, a holder
of $100,000 principal amount of Notes would
upon conversion receive 80,000 shares of
common stock.
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Liquidity Event: A Liquidity Event will be deemed to occur upon
a "person" or "group" within the meaning of
the Securities Exchange Act of 1943 becoming
the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of capital
stock of the Company representing more than
20% of the voting power of such capital
stock through (i) a public offering of
capital stock of the Company ("IPO"), or
(ii) a sale of all or substantially all of
the assets of the Company (except tofor
transfers of assets to one or more joint
ventures as part of Company's strategic
plan), or (iii) a sale, merger or business
combination of the Company where the Company
is not the surviving corporation.
Warrants: The Notes will contain attached Warrants to
acquire common stock of the Company. Each
holder of Notes, at the date of their
original issue, will be entitled to receive,
for every dollar in principal amount of
Notes, Warrants to purchase for cash two
shares of Company common stock, one share at
an exercise price of $1.00 per share and a
second share at an exercise price of $1.25
per share. Holders of Warrants will be
entitled to exercise all or a portion of
their Warrants at any time prior to the
fifth anniversary of the date of issue of
the Warrants. The Warrants will contain
customary anti-dilution protection
consistent with the terms in the existing
Warrant Agreement dated as of June 30, 2004
with respect to outstanding warrants to
purchase common stock.
Registration Rights: In connection with any future public offering
by the Company, "piggyback" registration
rights, on customary terms, relating to a
sale of common stock issued to holders of
Notes and Warrants upon their conversion.
Conditions: 1. Customary documentation to reflect terms
of Notes and Warrants.
2. Minimum cash proceeds from sale of Notes of
$[2.0] million.
3. Approval by Board of Directors of the
Company.
[4. Extension of maturity date of existing debt,
in the principal amount of $1.2 million held
by ▇▇▇▇▇▇ ▇▇▇▇▇▇ on mutually acceptable
terms.]
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