Exhibit 99.1- Promissory Note for $500,000 dated November 15, 2004
PROMISSORY NOTE
$500,000 Nov 15, 2004
FOR VALUE RECEIVED, Amistar Corporation, a California corporation ("MAKER"),
hereby unconditionally promises to pay to the order of Gordon S. Marshall, an
individual ("LENDER"), in lawful money of the United States of America and in
immediately available funds, the principal sum of Five hundred Thousand
($500,000) (the "PRINCIPAL AMOUNT"), together with accrued and unpaid interest
thereon, each due and payable on the dates and in the manner set forth below.
1) INTEREST RATE. Subject to the terms hereof, the rate of interest shall
be seven percent (7.25%) per annum (the "INTEREST RATE"). Interest
shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
2) PAYMENT SCHEDULE. Subject to Sections 3 and 6 below, Maker shall pay
the principal and interest in accordance with the payment schedule set
forth below. All payments shall be applied first to any charges due
hereunder, then to accrued interest, and then to the principal balance.
a) No amounts shall be due or payable prior to December 31, 2004.
b) The entire outstanding Principal Amount and all accrued
interest shall be due and payable in full on December 31, 2004
(the "MATURITY DATE").
3) PREPAYMENTS.
(a) This Note may be prepaid in whole or in part at any time
without premium or penalty.
(b) All amounts outstanding under this Note shall be prepaid in
full immediately prior to (i) Maker's dissolution or
liquidation, or (ii) the acquisition by a third party of all
or substantially all of Maker's capital stock, equity
interests or assets.
(c) The Prepayment shall be exercised by written notice. Such
notice shall identify the Principal Amount ("PREPAYMENT
PRINCIPAL") and the interest ("PREPAYMENT INTEREST" and,
together with the Prepayment Principal, the "PREPAYMENT
AMOUNT") outstanding under this Note and shall notify Maker of
the time, place and date for settlement of such repayment,
which shall be scheduled by Lender within fifteen (15) days
following the date of such notice.
4) PLACE OF PAYMENT. All amounts payable hereunder shall be made at the
place of payment specified in writing by Lender.
5) SUBORDINATION This note shall be subordinated to Makers obligations in
that certain Reimbursement Agreement, Dated as of October 1, 1995, as
amended (the "Reimbursement Agreement").
6) DEFAULT. Each of the following events shall be an "EVENT OF DEFAULT"
hereunder:
(a) Maker fails to pay timely any of the principal, interest or
other amounts due under this Note on the date the same become
due and payable;
(b) Maker files any petition or commences any case or other
proceeding with respect thereto for relief under any
bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, liquidation or moratorium law or any
other law for the relief of, or relating to, debtors, now or
hereafter in effect, or makes any assignment for the benefit
of creditors, or admits in writing its inability to pay or
generally fails to pay its debts as they mature or become due,
or Maker dissolves or ceases to continue to exist, or takes
any corporate action in furtherance of any of the foregoing;
or
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(c) an involuntary petition is filed or any case or other
proceeding is commenced against Maker (unless such petition is
dismissed or discharged within sixty (60) days) under any
bankruptcy, reorganization, arrangement, insolvency,
adjustment of debt, liquidation or moratorium statute now or
hereafter in effect, or a custodian, receiver, trustee,
liquidator, assignee for the benefit of creditors (or other
similar official) is applied for or appointed for Maker or is
applied for or appointed to take possession, custody or
control of any property of Maker.
7) REMEDIES. Upon the occurrence and during the continuance of an Event of
Default hereunder and subject to the subordination provisions in
Section 5:
i) all unpaid principal, accrued interest and other amounts owing
hereunder shall, at the option of Lender (and, in the case of
an Event of Default pursuant to Section 6(b) or (c) above,
automatically) be immediately due, payable and collectible by
Lender pursuant to applicable law; and
ii) Lender may exercise any and all rights and remedies it may
have under this Note and/or under applicable law.
iii) All rights and remedies shall be cumulative and not exclusive.
The failure of Lender to exercise all or any of its rights,
remedies, powers or privileges hereunder or any other
agreement or applicable law in any instance shall not
constitute a waiver thereof in that or any other instance.
8) EXPENSES. If the payment of principal or interest of this Note is not
paid when due, an Event of Default shall have occurred, or Maker
otherwise breaches its obligations under this Note, Maker shall pay
reasonable attorneys' fees to Lender together with reasonable costs and
expenses of collection, including, without limitation, any attorneys'
fees, costs and expenses relating to any proceedings with respect to
the bankruptcy, reorganization, insolvency, readjustment of debt,
dissolution or liquidation of Maker or any party to any agreement or
instrument securing this Note.
9) MAXIMUM RATE. All agreements which either are now or which shall become
agreements between Maker and the holder of this Note are hereby
expressly limited so that in no contingency or event whatever, whether
by reason of deferment or advancement of the indebtedness represented
by this Note, acceleration of the maturity date of this Note, or
otherwise, shall the amount paid or agreed to be paid to the holder of
this Note for the use, forbearance or detention of the indebtedness
evidenced hereby exceed the maximum amount of interest permissible
under applicable law. If at any time, from any circumstance whatsoever,
fulfillment of any provision of this Note or any other agreement
between Maker and the holder hereof, shall result in or involve
payments or performance which would exceed the maximum legal interest
rate, then, ipso facto, the obligation to be fulfilled shall be reduced
so as not to exceed said maximum legal interest rate.
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10) WAIVER. Maker, for itself and its legal representatives, successors and
assigns, hereby expressly waives demand, presentment, notice of
dishonor, protest and notice of protest, and all other demands and
notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note and agrees that any extension,
renewal or postponement of the time of payment or any other indulgence
to, or release of any person now or hereafter obligated for the payment
of this Note shall not affect Maker's liability hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Note has been duly executed as of the date
first set forth above.
MAKER:
Amistar Corporation, a California Corporation
By: \s\ Gregory Leiser
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Name: Gregory Leiser
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Title: Vice President and CFO
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ATTEST:
By: \s\ Joanne Jensen
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Name: Joanne Jensen
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Title: Human Resources Manager
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