EX-10.2 Form of Promissory Note






Exhibit 10.2




Form of




PROMISSORY NOTE




 






(Date)



FOR VALUE RECEIVED, PUMPCO, INC., a corporation located at the address stated below (“Maker”)
promises, jointly and severally if more than one, to
pay to the order of General Electric Capital Corporation or any subsequent holder hereof (each, a
“Payee”) at its office located at 11175 Cicero Drive, Suite
600, Alpharetta, GA 30022 or at such other place as Payee may designate as follows:



(a) the principal sum of                                         , and



(b) interest on the unpaid principal balance from the date hereof through and including the dates
of payment, at a fixed, simple interest rate of Seven and 05/100
percent (7.05%) per annum (the “Contract Rate”) in Sixty (60) consecutive monthly installments of
principal and interest as follows:




	 	 	 
	Periodic	 	 
	Installment	 	Amount
	 
	 	 




(each, a “Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding and unpaid principal, accrued interest and any and all amounts due hereunder and under
the other Debt Documents (as defined below). The first Periodic Installment shall be due and
payable on                                         
and the following Periodic Installments and the final installment shall be due and payable on
the same day of each succeeding period
(each, a “Payment Date”). All payments shall be applied: first, to interest due and unpaid
hereunder and under the other Debt Documents; second, to all other amounts due and unpaid
hereunder and under the other Debt Documents, and then to principal due hereunder and under the
other Debt Documents. The acceptance by Payee of any payment which is less than payment in full of
all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive
payment in full at such time or at any prior or subsequent time. Interest shall be calculated on
the basis of a 365-day year (or a 366-day leap year, as applicable) and will be charged at the
Contract Rate for each calendar day on which any principal is outstanding. The payment of any
Periodic Installment after its due date shall result in a corresponding decrease in the portion of
the Periodic Installment credited to the remaining unpaid principal balance. The payment of any
Periodic Installment prior to its due date shall result in a corresponding increase in the portion
of the Periodic Installment credited to the remaining unpaid principal balance.



All amounts due hereunder and under the other Debt Documents are payable in the lawful currency of
the United States of America. Maker hereby expressly authorizes Payee to insert the date value is
actually given in the blank space on the face hereof and on all related documents pertaining
hereto.



This Note may be secured by a security agreement, chattel mortgage, pledge agreement or like
instrument (each of which is hereinafter called a “Security Agreement”, and collectively with any
other document or agreement related thereto or to this Note, the “Debt Documents”).



Time is of the essence hereof. If Payee does not receive from Maker payment in full of any
Periodic Installment or any other sum due under this Note or any other Debt Document is not
received within fifteen (15) days after its due date, Maker agrees to pay a late fee equal to five
percent (5%) on such late Periodic Installment or other sum, but not exceeding any lawful maximum.
Such late fee will be immediately due and payable, and is in addition to any other reasonable
costs, fees and expenses that Maker may owe as a result of such late payment. Additionally, if an
Event of Default or default (as such terms are defined and/or used in the Security Agreement) has
occurred, then the entire principal sum remaining unpaid, together with all accrued interest
thereon and any other sum payable under this Note or any other Debt Document, at the election of
Payee, shall immediately become due and payable, with interest thereon at the lesser of five
percent (5%) per annum or the highest rate not prohibited by applicable law from the date of such
accelerated maturity until paid (both before and after any judgment). The application of such 5%
interest rate shall not be interpreted or deemed to extend any cure period set forth in this Note
or any other Debt Document, cure any default or otherwise limit Payee’s right or remedies
hereunder or under any Debt Document.



Maker may prepay in full, but not in part, all outstanding amounts hereunder before they are due on
any scheduled Payment Date upon at least thirty (30) days’ prior written notice to Payee. Payee is
authorized and entitled to apply any amounts paid by Maker as a prepayment of indebtedness to
delinquent interest or other amounts due and owing from Maker to Payee hereunder and under any
other Debt Documents before application of such funds to principal outstanding hereunder.



If Maker makes a prepayment of this Note for any reason, Maker shall pay irrevocably and in full to
Payee (i) all outstanding principal amounts, (ii) all accrued interest, (iii) the Prepayment Fee
(as defined below) and (iv) any and all other amounts due hereunder or under the other Debt
Documents. Maker specifically acknowledges that, to the fullest extent allowed by applicable law,
it shall be liable for the Prepayment Fee on any acceleration hereof or under the other Debt




 









 







Documents. In the event of an acceleration hereof or under the other Debt Documents, the
Prepayment Fee shall be determined as if (a) Maker prepaid this Note in full immediately before
such acceleration and (b) the prepayment notice referred to above was received by Payee thirty
(30) days prior to such date.



For purposes hereof, “Prepayment Fee” shall be an amount equal to the following percentage of
remaining principal balance for prepayments occurring in the indicated period: three percent (3%)
(for prepayments occurring prior to the first anniversary of the date hereof), two percent (2%)
(for prepayments occurring on and after the first anniversary of the date hereof but prior to the
second anniversary of the date hereof), one percent (1%) (for prepayments occurring on and after
the second anniversary of the date hereof but prior to the third anniversary of the date hereof)
and zero percent (0%) (for prepayments occurring any time thereafter).



It is the
intention of the parties hereto to comply with the applicable usury laws; accordingly, it
is agreed that, notwithstanding any provision to the contrary in this Note or any other Debt
Document, in no event shall this Note or any other Debt Document require the payment or permit the
collection of interest in excess of the maximum amount permitted by applicable law. If any such
excess interest is contracted for, charged or received under this Note or any other Debt Document,
or if all of the principal balance shall be prepaid, so that under any of such circumstances the
amount of interest contracted for, charged or received under this Note or any other Debt Document
on the principal balance shall exceed the maximum amount of interest
permitted by applicable law,
then in such event: (a) the provisions of this paragraph shall govern and control, (b) neither
Maker nor any other person or entity now or hereafter liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is in excess of the maximum
amount of interest permitted by applicable law, (c) any such excess which may have been collected
shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of Payee, and (d) the effective rate of interest shall be automatically reduced to
the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the
courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing,
all calculations of the rate of interest contracted for, charged or received under this Note or any
Debt Document which are made for the purpose of determining whether such rate exceeds the maximum
lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full stated term of the
indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from
Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any
applicable state law is amended or the law of the United States of America preempts any applicable
state law, so that it becomes lawful for Payee to receive a greater interest per annum rate than is
presently allowed. Maker agrees that, on the effective date of such amendment or preemption, as the
case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate
allowed by the amended state law or the law of the United States of America.



Maker
hereby consents to any and all extensions of time, renewals, waivers or modifications of,
and all substitutions or releases of, security or of any party primarily or secondarily liable on
this Note or any other Debt Document or any term and provision of either, which may be made,
granted or consented to by Payee, and agrees that suit may be brought and maintained against Maker
and/or any and all sureties, endorsers, guarantors or any others who may at any time become liable
for payments and performance under this Note and any other Debt Documents (each such person, other
than Maker, an “Obligor”), at the election of Payee without joinder of any other as a party
thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any
security hereof in order to enforce payment of this Note. Maker hereby waives presentment, demand
for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other
notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in
collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by
law) all expenses incurred in collection, including Payee’s reasonable attorneys’ fees. THIS NOTE
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF CONNECTICUT.



MAKER IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN
THE STATE OF CONNECTICUT TO HEAR AND DETERMINE ANY SUIT, ACTION OR PROCEEDING AND TO SETTLE ANY
DISPUTES, WHICH MAY ARISE OUT OF OR IN CONNECTION HEREWITH AND WITH THE DEBT DOCUMENTS
(COLLECTIVELY, THE “PROCEEDINGS”), AND MAKER FURTHER IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO
REMOVE ANY SUCH PROCEEDINGS FROM ANY SUCH COURT (EVEN IF REMOVAL IS SOUGHT TO ANOTHER OF THE
ABOVE-NAMED COURTS). MAKER IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MIGHT NOW OR HEREAFTER HAVE
TO THE ABOVE-NAMED COURTS BEING NOMINATED AS THE EXCLUSIVE FORUM TO HEAR AND DETERMINE ANY SUCH
PROCEEDINGS AND AGREES NOT TO CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS FOR ANY REASON WHATSOEVER, THAT IT OR ITS PROPERTY IS IMMUNE FROM LEGAL PROCESS
FOR ANY REASON WHATSOEVER, THAT ANY SUCH COURT IS NOT A CONVENIENT OR APPROPRIATE FORUM IN EACH
CASE WHETHER ON THE GROUNDS OF VENUE OR FORUM NON-CONVENIENS OR OTHERWISE. MAKER ACKNOWLEDGES THAT
BRINGING ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY COURT OTHER THAN THE COURTS SET FORTH ABOVE
WILL CAUSE IRREPARABLE HARM TO PAYEE WHICH COULD NOT ADEQUATELY BE COMPENSATED BY MONETARY
DAMAGES, AND, AS SUCH, MAKER AGREES THAT, IN ADDITION TO ANY OF THE REMEDIES TO WHICH PAYEE MAY BE
ENTITLED AT LAW OR IN EQUITY, PAYEE WILL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS (WITHOUT THE
POSTING OF ANY BOND AND WITHOUT PROOF OF ACTUAL DAMAGES) TO ENJOIN THE PROSECUTION OF ANY SUCH
PROCEEDINGS IN ANY OTHER COURT. Notwithstanding the foregoing, each of Maker and Payee shall have
the right to apply to a court of competent jurisdiction in the United States of America or abroad
for equitable relief as is necessary to preserve, protect and enforce its respective rights under
this Note and any other Debt Document, including, but not limited to orders of attachment or
injunction necessary to maintain the status quo pending litigation or to enforce judgments against
Maker, any Obligor or the collateral pledged to Payee pursuant to any Debt Document or to gain
possession of such collateral. MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY
DEBT DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS
TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT




 









 







CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS
IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY DEBT
DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY
THE COURT.



This Note and the other Debt Documents constitute the entire agreement of Maker and Payee with
respect to the subject matter hereof and supersede all prior understandings, agreements and
representations, express or implied.



No variation or modification of this Note, or any waiver of any of its provisions or conditions,
shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any
such waiver, consent, modification or change shall be effective only in the specific instance and
for the specific purpose given.




Payment Authorization



Payee is hereby directed and authorized by Maker to advance and/or apply the proceeds of the loan
as evidenced by this Note to the following parties in the stipulated amounts as set forth below:




	 	 	 	 	 
	Company Name	 	Address	 	Amount
	 
	 	 	 	 




Any provision in this Note or any of the other Debt Documents which is in conflict with any
statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.




	 	 	 	 	 
	 	PUMPCO, INC.

 	 
	 	By:  	/s/ C. Robert Campbell
 	 
	 	 	Name:  	C. Robert Campbell 	 
	 	 	Title:  	VP and Treasurer
	 
	 	 	Federal Tax ID #: 742196341
	 
	 	 	Address:
1209 South Main Street, Giddings, Lee


                  County, TX 78942