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ENTECH ENVIRONMENTAL TECHNOLOGIES INC | BARRON PARTNERS, L.P. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Search Convertible Promissory Note by:
Exhibit 10.48
NEITHER THIS NOTE NOR THE SECURITIES INTO WHICH IT MAY BE CONVERTED HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES
LAWS, AND MAY NOT BE TRANSFERRED OR SOLD, UNLESS IT HAS BEEN REGISTERED UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
Note No. 12-2005
December 30, 2005
New York, New York
Secured
Convertible Note
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ENTECH ENVIRONMENTAL TECHNOLOGIES, INC., a Florida corporation (together with
its subsidiaries and
successors, the
"Maker"), for value received,
hereby
promises to pay to the order of BARRON
PARTNERS, L.P., a
Delaware limited
partnership ("Holder") and
registered assigns the principal sum of
ONE HUNDRED
THOUSAND DOLLARS ($100,000).
All payments made on this Note
shall be made to
Holder by wire transfer of immediately
available funds to Holder's account (the
"Bank Account") at such bank in the United States as may be specified
in writing
by Holder to Maker, together with
interest on the principal sum of
this Note
outstanding from time to time. All
payments made on this Note shall be made pro
rata and pari passu.
1.
MATURITY DATE. The
principal sum of this Note shall be
payable on
December 30, 2007 (the "Maturity
Date"), in such coin or currency of the United
States of America
as at the time of payment shall be legal tender
for the
payment of public and private debts.
The Maker shall have no right to
prepay
this Note.
2. INTEREST. Interest on the principal sum of this
Note outstanding from
time to time shall be payable on the
Maturity Date at the rate of 8%
per annum
from the date of issuance set forth above until payment in full of the
principal
sum hereof has been made. Any installment of principal or interest not paid
when
due, by acceleration or otherwise, shall bear interest after the due date at
the
rate equal to the
lesser of (a) 18% per annum
or (b) the highest rate of
interest permitted by applicable law, payable upon demand. Interest on this
Note
shall be calculated on the
basis of a 360-day year and paid for the actual
number of days elapsed.
3. COLLATERAL.
(a) SECURITY INTEREST.
Maker hereby grants to Holder to
secure this
Note a security interest in and lien on all of the tangible
and intangible
assets of Maker, whether
now owned or existing, hereafter
acquired or
arising, or in which Maker now or
hereafter has any rights, and wheresoever
located including, without limitation, any and all of the following: (i)
accounts;
(ii) accounts receivable; (iii) chattel paper; (iv) documents;
(v) equipment; (vi) general
intangibles, including, without limitation,
patents, patent
applications, trademarks and
service marks, and computer
software and programs; (vii)
instruments; (viii) inventory; (ix) investment
property; (x) monies, residues and property of any kind that is
now, or at
any time hereafter, in the possession or under the control of
Maker; (xi)
real property;
(xii) accessions to,
substitutions for, and
all
replacements, products and proceeds of the foregoing, including,
without
limitation, proceeds of insurance policies;
and (xiii) books and records
(including, without
limitation, customer lists, credit files,
computer
programs, print-outs
and other computer materials and records) of Maker
pertaining to any of the
foregoing (collectively, the "Collateral"), and
agrees that Holder
shall have all of the rights of a secured party under
the Uniform Commercial Code of the
State of California.
(b) FINANCING STATEMENTS AND
COSTS. Maker will join with Holder in the
execution and filing of such financing
statement or statements as may be
requested by Holder in form and content
reasonably required by Holder.
Maker will
pay all costs
of filing any
financing, continuation or
~CHGO1:30494316.v1
<PAGE>
termination statements
with respect to the security
interest created by
this Note, together with costs and expenses of any lien
search reasonably
required by Holder during the term
hereof.
(c) COLLECTIONS; HOLDER'S RIGHT
TO NOTIFY DEBTORS; VERIFICATION. Maker
hereby authorizes
Holder, at any time or times
after an Event of Default
(as
hereinafter defined), to:
(i) notify any or all debtors
that the
accounts receivable
have been assigned to Holder and that Holder has a
security interest
therein; and (ii) direct such
debtors to make all
payments due from them to Maker upon
the accounts receivable directly to a
lock box designated by Holder. Holder shall promptly furnish Maker with a
copy of any such notice sent. Any
such notice, in Holder's sole discretion,
may be sent on Maker's
letterhead, in which event Maker shall
co-sign such
notice with Holder.
(d) CONSIGNMENT OF INVENTORY. Maker shall not at any time permit any
inventory to be placed on
consignment with any person or entity without the
prior written consent of Holder.
(e) PROCEEDS OF EQUIPMENT. Maker shall not, without the prior written
consent of
Holder, sell, lease
or grant a security interest
in, or
otherwise dispose of or encumber,
any equipment, or any part thereof. Upon
any disposition of equipment, Maker shall,
unless otherwise agreed to by
Holder, deliver all of the cash proceeds to Holder or
his designee, which
proceeds shall be applied to
payments under the Note.
Notwithstanding the
foregoing, Maker shall have the right to trade in obsolete,
redundant or
unnecessary equipment in connection
with the purchase of any new equipment,
provided that such new equipment is
subject to Holder's security interest
free and clear of all other liens
and encumbrances.
(f) GENERAL INTANGIBLES.
Maker shall not at any time sell, assign,
transfer, license
or issue a permit to use any general
intangible, or
forfeit or allow to lapse any rights to any general
intangible, of Maker
without the prior written consent of
Holder.
(g) PROCEEDS OF REAL PROPERTY.
Maker shall not, without the prior
written consent of Holder, sell, lease (as lessor or sublessor) or grant
a
mortgage in, or otherwise
encumber, any real property or any part
thereof.
Upon any such disposition, Maker shall deliver all of the proceeds
thereof
to Holder, or his designee, to be
applied to the repayment of the Note.
4. NO PREPAYMENTS
AND ACCELERATION. All payments on account of the
indebtedness evidenced by this Note shall be applied first to accrued and
unpaid interest and then to principal. No prepayments of principal may be
made.
5. CONVERSION.
(a) ELECTIVE CONVERSION. At the
election of Holder, but subject to the
limitations provided herein and in
the Note Purchase Agreement of even date
herewith, Holder
shall have the right to convert all or any part of the
principal and accrued
interest of this Note into shares of Common Stock,
$0.001 par value
per share at the price of
$0.025 per share of Common
Stock.
(b) NOTICE; EXERCISE OF CONVERSION RIGHT.
Holder shall give written
notice to Maker of Holder's election
to convert this Note in whole or
in
part into shares of Common
Stock. If Holder intends to exercise its right
of conversion only in part, it shall
so specify in its notice to Maker.
(c) CLOSING. Closing of the
conversion of this Note shall occur at the
office of Maker not less than five
(5) business days
after delivery of
Holder's notice of conversation.
This Note shall be surrendered to Maker at
the closing. If only a portion of the debt
represented by this Note is
2
~CHGO1:30494316.v1
<PAGE>
being converted,
then (i) the principal of this
Note shall be deemed
converted first, then the
accrued interest and (ii) a new Note of like
tenor shall be issued by Maker to
Holder for the unconverted balance of the
principal and accrued interest. The issuance of certificates for shares of
capital stock upon the conversion of
this Note shall be made without charge
to Holder for any taxes or other
costs or expenses.
(d) ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The character
of the shares of Common Stock at the
time issuable upon conversion of this
Note and the Conversion Price
therefore, are subject to adjustment upon the
occurrence of the
following events, and all such
adjustments shall be
cumulative:
(i) ADJUSTMENT FOR
STOCK SPLITS, STOCK DIVIDENDS,
RECAPITALIZATIONS, ETC.
The Conversion Price of this
Note and the
number of shares of Common
Stock at the time issuable upon
conversion
of this Note shall be appropriately
adjusted to reflect
any stock
dividend, stock
split, combination of
shares, reclassification,
recapitalization or other
similar event affecting
the number of
outstanding shares of Common
Stock.
(ii) ADJUSTMENT FOR
REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any consolidation
or merger of the Maker with or into any
other corporation, entity
or person, or
any other corporate
reorganization, in which the Maker shall
not be the continuing or
surviving entity of such
consolidation, merger or reorganization
(any
such transaction being
hereinafter referred to as a "Reorganization"),
then, in each case, the Holder,
on conversion hereof at any time after
the consummation
or effective date
of such Reorganization (the
"Effective Date"),
shall receive, in lieu of the
shares of stock or
other securities at any time
issuable upon the conversion of this Note
issuable on such conversion prior to the
Effective Date, the stock and
other securities and property (including
cash) to which such holder
would have been entitled upon the
Effective Date if such holder had
converted this Note
immediately prior thereto (all subject
to further
adjustment as provided in this
Note).
(iii) CERTIFICATE AS TO
ADJUSTMENTS. In case of any adjustment or
readjustment in the
price or kind of
securities issuable on the
conversion of this Note, the Maker will promptly give written notice
thereof to the
Holder in the form of a
certificate, certified and
confirmed by the Board of
Directors of the Maker, setting






