FORM OF NOTE
FORTUNE NATURAL RESOURCES CORPORATION
10% SECURED PROMISSORY NOTE
$200,000.00 May 14, 2002
FOR VALUE RECEIVED, the undersigned, FORTUNE NATURAL RESOURCES CORPORATION, a
Delaware corporation with offices at One Commerce Green, 515 West Greens Road,
Suite 720, Houston, Texas 77067 ("Maker"), promises to pay to the order of BARRY
W. BLANK TRUSTEE FBO BARRY W. BLANK LIVING TRUST with an address at P. O. Box
32056, Phoenix, Arizona 85064 ("Payee"), on August 18, 2002 except as otherwise
provided herein (the "Maturity Date"), the principal amount of Two Hundred
Thousand Dollars ($200,000.00) in lawful money of the United States of America
(the "Principal) together with all accrued interest.
The Note is secured by property of the Maker as provided herein. It bears simple
interest (the "Interest") at the annual rate of ten percent (10%), payable, in
arrears, on the Interest Payment Dates (as defined in Section 1 below), until
the Principal and all accrued Interest thereon shall be paid in full. The
Principal, Interest, and all interest on past due Principal and Interest, all
other sums due and owing hereunder and under the Security Agreements (as
hereinafter defined), are referred to as the "Obligations".
1. Interest.
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Maker will pay Interest on the first day of each January, April, July and
October (the "Interest Payment Dates") commencing on July 1, 2002. With respect
to the July payment, Interest on this Note will accrue from the date hereof;
with respect to subsequent payments, Interest on this Note will accrue from the
most recent date to which interest has been paid. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
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Maker will pay Principal and Interest in money of the United States that at the
time of payment is legal tender for the payment of public and private debts.
Maker may, however, pay Principal and Interest by its check, subject to
collection, payable in such money. It may mail an Interest check to Payee's
address as it first appears on this Note or such other address as the holder of
this Note shall give by notice to Maker. The holder of this Note must surrender
this Note to Maker when the Obligations have been paid or performed in full.
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3. Designation of Collateral.
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This Note is secured by and entitled to the benefit of all security agreements,
deeds of trust, mortgages and lien instruments executed by the Maker in favor of
Payee (herein called the "Security Agreements"), and including without
limitation that certain Mortgage, Deed of Trust and Assignment of Production of
even date herewith from the Maker to the Payee, covering the Maker's interest in
certain oil and gas leases and the proceeds therefrom, together with the
personal property and fixtures located thereon, all as more particularly
described therein.
4. Covenants.
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Maker covenants and agrees that from and after the date hereof and until the
date of repayment and performance in full of the Obligations it shall comply
with the following conditions:
(i) Maintenance of Existence and Conduct of Business. Maker shall, and
shall cause each of its subsidiaries, if any, to (A) do or cause to be
done all things necessary to preserve and keep in full force and effect
its corporate existence and rights; and (B) continue to conduct its
business so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
(ii) Books and Records. Maker shall, and shall cause each of its
subsidiaries, if any, to keep adequate books and records of account with
respect to its business activities.
(iii) Insurance. Maker shall, and shall cause each of its subsidiaries, if
any, to maintain insurance policies insuring such risks as are customarily
insured against by companies engaged in businesses similar to those
operated by Maker or such subsidiaries, as the case may be. All such
policies are to be carried with reputable insurance carriers and shall be
in such amounts as are customarily insured against by companies with
similar assets and properties engaged in a similar business.
(iv) Compliance with Law. Maker shall, and shall cause each of its
subsidiaries, if any, to comply in all material respects with all federal,
state and local laws and regulations applicable to it or such
subsidiaries, as the case may be, which if breached would have a material
adverse effect on Maker's or such subsidiaries', as the case may be,
business or financial condition.
5. Representations and Warranties of Maker.
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Maker represents and warrants that it: (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power to carry on its business as now conducted
and to own its properties and assets it now owns; (ii) is duly qualified or
licensed to do business as a foreign corporation in good standing in the
jurisdictions in which ownership of property or the conduct of its business
requires such qualification except jurisdictions in which the failure to qualify
to do business will have no material adverse effect on its business, prospects,
operations, properties, assets or condition (financial or otherwise); (iii) has
full power and authority to execute and deliver this Note, and that the
execution and delivery of this Note will not result in the breach of or default
under, with or without the giving of notice and/or the passage of time, any
other agreement, arrangement or indenture to which it is a party or by which it
may be bound, or the violation of any law, statute, rule, decree, judgment or
regulation binding upon it; and (iv) has taken and will take all acts required,
including but not limited to authorizing the signatory hereof on its behalf to
execute this Note, so that upon the execution and delivery of this Note, it
shall constitute the valid and legally binding obligation of Maker enforceable
in accordance with the terms thereof.
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6. Maker's Right to Prepay.
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Maker may prepay this Note at any time.
7. Acknowledgment of Payee's Investment Representations.
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By accepting this Note, Payee acknowledges that this Note has not been and will
not be registered under the Securities Act of 1933 (the "Act") or qualified
under any state securities laws and that the transferability thereof is
restricted by the registration provisions of the Act as well as such state laws.
Based upon the representations and agreements being made by Payee herein, this
Note is being issued to Payee pursuant to an exemption from such registration
provided by Section 4 (2) of the Act and applicable state securities law
qualification exemptions. Payee represents that the acquisition of this Note is
for investment purposes only and not with a view to resale or other distribution
thereof, nor has it been acquired with the intention of selling, transferring or
otherwise disposing of all or any part of it for any particular event or
circumstance, except selling, transferring or disposing of it only upon full
compliance with all applicable provisions of the Act, the Securities Exchange
Act of 1934, the Rules and Regulations promulgated by the Commission thereunder,
and any applicable state securities laws. Payee further understands and agrees
that no transfer of this Note shall be valid unless made in compliance with the
restrictions set forth on the front of this Note, effected on Maker's books by
the registered holder hereof, in person or by an attorney duly authorized in
writing, and similarly noted hereon. Maker may charge Payee a reasonable fee for
any re- registration, transfer or exchange of this Note.
8. Acceleration of Maturity.
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Each of the following events constitutes a default (each an "Event of Default")
under this Note.
(a) Maker fails to pay any amount of Principal or Interest when due
and payable, or
(b) Maker fails to pay or perform any other obligation when due, and such
Obligation remains unpaid or unperformed after the Payee has given the maker
thirty (30) days' notice and opportunity to cure; or
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(c) Maker suffers the entry against it of a judgment, decree or order for relief
by a court of competent jurisdiction in an involuntary proceeding commenced
under any applicable bankruptcy, insolvency or other similar law of any
jurisdiction now or hereafter in effect, including the federal Bankruptcy Code,
as from time to time amended, or has any such proceeding commenced against it
which remains undismissed for a period of ninety days; or
(d) Maker commences a voluntary case under any applicable bankruptcy, insolvency
or similar law now or hereafter in effect, including the federal Bankruptcy
Code, as from time to time amended; or fails generally to pay (or admits in
writing its inability to pay) its debts as such debts become due; or
(e) Maker suffers the appointment of or taking possession by a receiver,
custodian, trustee, or similar official of all or part of its assets in a
proceeding brought against or initiated by it, and such appointment or taking
possession is neither made ineffective nor discharged within ninety days after
the making thereof, or such appointment or taking possession is at any time
consented to, requested by, or acquiesced to by it; or
(f) Upon the occurrence of an Event of Default, this Note shall thereupon by
immediately due and payable, without any further demand, presentment, notice, or
demand, or any other notice or declaration of any kind; or
(g) A default occurs under any Security Agreement, and such default remains
uncured after Payee has given Maker thirty (30) days' notice and opportunity to
cure.
9. Collection costs.
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If this Note is placed in the hands of attorneys for collection after
default, Maker agrees to pay to the holder of this Note in addition to the
Principal and Interest and all other sums comprising the Obligations, all the
costs and expenses of said holder in enforcing this Note including, without
limitation, reasonable attorneys' fees and legal expenses.
10. Limitation of Liability.
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No director, officer, employee or stockholder, as such, of Maker shall have any
liability for any obligations of Maker under this Note or for any claim based
on, in respect or by reason of such obligations or their creation. Payee, by
accepting this Note, waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of this Note.
11. Limitation of Interest Payments.
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Nothing contained in this Note or in any other agreement between Maker and Payee
requires Maker to pay or Payee to accept Interest in an amount which would
subject Payee to any penalty or forfeiture under applicable law. In no event
shall the total of all charges payable hereunder, whether of Interest or of such
other charges which may or might be characterized as interest, exceed the
maximum rate permitted to be charged under the laws of the States of New York or
Texas. Should Payee receive any payment which is or would be in excess of that
permitted to be charged under such laws, such payment shall have been and shall
be deemed to have been made in error and shall automatically be applied to
reduce the Principal outstanding on this Note.
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12. Waiver of Presentment
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Maker and all endorsers, sureties, and guarantors of this instrument jointly and
severally waive, as of the occurrence of an Event of Default but not before,
presentment and notice of dishonor.
13. Miscellaneous.
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(a) Effect of Forbearance. No forbearance, indulgence, delay or failure to
exercise any right or remedy by Payee with respect to this Note shall operate as
a waiver or as an acquiescence in any default.
(b) Effect of Single or Partial Exercise of Right. No single or partial exercise
of any right or remedy by Payee shall preclude any other or further exercise
thereof or any exercise of any other right or remedy by Payee.
(c) Governing Law. This Note shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the internal laws of the
State of Texas applicable to contracts made and to be performed entirely within
such State.
(d) Headings. The headings and captions of the various paragraphs herein are for
convenience of reference only and shall in no way modify any of the terms or
provisions of this Note.
(e) Loss, Theft, Destruction or Mutilation. Upon receipt by Maker of evidence
reasonably satisfactory to it of loss, theft, destruction or mutilation of this
Note, Maker shall make and deliver or caused to be made and delivered to Payee a
new Note of like tenor in lieu of this Note.
(f) Modification of Note or Waiver of Terms Thereof Relating to Payee. No
modification or waiver of any of the provisions of this Note shall be effective
unless in writing and signed by Payee and then only to the extent set forth in
such writing, nor shall any such modification or waiver be applicable except in
the specific instance for which it is given. This Note may not be discharged
orally but only in writing duly executed by Payee.
(g) Notice. All offers, acceptances, notices, requests, demands and other
communications under this Note shall be in writing and, except as otherwise
provided herein, shall be deemed to have been given only when delivered in
person, via facsimile transmission if receipt thereof is confirmed by the
recipient, or, if mailed, when mailed by certified or registered mail prepaid,
to the parties at their respective addresses first set forth above, or at such
other address as may be given in writing in future by either party to the other.
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(h) Successors and Assigns. This Note shall be binding upon Maker, its
successors, assigns and transferees, and shall inure to the benefit of and be
enforceable by Payee and his heirs, successors and assigns.
(i) Severability. If one or more of the provisions or portions of this Note
shall be deemed by any court or quasi-judicial authority to be invalid, illegal
or unenforceable in any respect, the invalidity, illegality or unenforceability
of the remaining provisions, or portions of provisions contained herein shall
not in any way be affected or impaired thereby, so long as this Note still
expresses the intent of the parties. If the intent of the parties cannot be
preserved, this Agreement shall either be renegotiated or rendered null and
void.
IN WITNESS WHEREOF, Maker has caused this Note to be executed on its behalf by
an officer thereunto duly authorized as of the date set forth above.
Fortune Natural Resources Corporation
a Delaware corporation
[SEAL]
By: /s/ Tyrone J. Fairbanks
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Tyrone J. Fairbanks, Chairman
and Chief Executive Officer
ATTEST: /s/ Dean W. Drulias
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Dean W. Drulias, Secretary
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