1
Exhibit 10.29
SECURED PROMISSORY NOTE
2,000,000 New York, New York
January ___, 1997
FOR VALUE RECEIVED, the undersigned unconditionally promises to pay to the
order of The Michael G. Jesselson 12/18/80 Trust (the "Lender"), at 1301 Avenue
of the Americas, Suite 4101, New York, New York 10019, or at such place
designated by Lender, the principal amount of TWO MILLION DOLLARS ($2,000,000)
on April 18, 1997; provided, however, that this Secured Promissory Note (the
"Note") shall become immediately due and payable upon (i) the filing by, or
against, the undersigned of any petition for protection under the United States
Bankruptcy Code, or any similar statute, (ii) the invalidity or any attempted
revocation of the Security Agreement of even date herewith executed by the
undersigned in favor of the Lender, (iii) the Lender's determination that a
material adverse change has occurred in the financial condition, operations,
business or prospects of the undersigned, or (iv) any representation or warranty
contained herein or in the documents executed in connection herewith being
untrue. The occurrence of any of the events described in clauses (i) through
(iv) of the foregoing sentence or the failure of the undersigned to pay any
amount when due hereunder shall constitute a default under this Note.
The undersigned promises to pay interest on the unpaid balance of such
principal amount from and including the date of this Note to but excluding the
date this Note is paid in full at a rate per annum equal to the greater of: (a)
seven and one-half percent (7 1/2%) per annum; or (b) the rate of interest
imputed by the Internal Revenue Service as of the date of execution.
All payments under this Note shall be made in lawful money of the United
States of America and in immediately available funds at the Lender's office
specified above. This Note may be prepaid in whole or in part, at any time,
without penalty.
The undersigned waives presentment, notice of dishonor, protest and any
other notice or formality with respect to this Note.
The undersigned agrees to reimburse the Lender on demand for all
reasonable costs, expenses and charges (including, without limitation,
reasonable attorneys' fees and charges) in connection with the interpretation,
performance or enforcement of this Note.
2
This Note shall be binding on the undersigned and its successors and
assigns and shall insure to the benefit of the Lender and her successors and
assigns; provided that the undersigned may to delegate any obligations under
this note without the prior written consent of the Lender.
The proceeds of this Note shall be used solely for the purpose of
retirement certain indebtedness owned by the undersigned to Oaktree Capital
Management, LLC, as general partner or investment manager on behalf of certain
funds and accounts, in the original principal amount of $2.5 million.
The undersigned represents and warrants that:
It 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,
and has all material governmental approvals necessary, to own its assets and to
carry on its business as now being or as proposed to be conducted.
The execution and delivery of this Note will not conflict with or result
in a breach of, or require any consent under, the charter or by-laws of the
undersigned or any applicable governmental regulation or any material agreement
or instrument to which the undersigned is a party or to which it is subject, or
constitute a default under, or result in the terminating of, or result in the
acceleration or mandatory prepayment of, any indebtedness evidenced by any such
agreement or instrument; and
The undersigned has all necessary corporate power and authority to
execute, deliver and perform its obligations under this Note; the execution,
delivery and performance by the undersigned of this Note has been duly
authorized by all necessary corporate action on its part; and this Note when
executed and delivered by the undersigned for value will constitute, its legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
The undersigned's chief operating officer and principal place of business
is located at the address set forth below.
All notices and communications to be given under this Note shall be given
or made in writing to the intended recipient at the address specified below or,
at such other address as shall be designated in a notice given to such entity.
All such communications shall be deemed to have been duly given when transmitted
by telex or telecopier, delivered to the telegraph or cable office or personally
delivered or, in the case of a mailed notice, upon receipt, in each case, given
Or addressed as follows:
3
To the undersigned: Nu-Tech Bio-Med, Inc.
500 Fifth Avenue, Suite 2424
New York, New York 10016
Telecopier: (212) 391-2864
Attention: J. Marvin Feigenbaum
To the Lender: The Michael G. Jesselson
12/18/80 Trust
1301 Avenue of the Americas
New York, New York 10019
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE
OF NEW YORK. THE UNDERSIGNED HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF
ANY NEW YORK STATE COURT SITTING IN NEW YORK COUNTY, NEW YORK FOR THE PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE UNDERSIGNED IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT
IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED BY THIS
NOTE.
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed and delivered as of the date and year first above written.
NU-TECH BIO-MED, INC.,
a Delaware corporation
By_____________________
J. Marvin Feigenbaum
Its President