Attached files
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EX-10.8 - Epcylon Technologies, Inc. | v181878_ex10-8.htm |
EX-10.7 - Epcylon Technologies, Inc. | v181878_ex10-7.htm |
EX-10.9 - Epcylon Technologies, Inc. | v181878_ex10-9.htm |
EX-10.6 - Epcylon Technologies, Inc. | v181878_ex10-6.htm |
EX-10.10 - Epcylon Technologies, Inc. | v181878_ex10-10.htm |
8-K - Epcylon Technologies, Inc. | v181878_8k.htm |
2238646
ONTARIO INC.
PROMISSORY
NOTE
US$
28,950,000.00
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April
19, 2010
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1.
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FOR
VALUE RECEIVED, 2238646
Ontario Inc., an Ontario corporation (the “Borrower”), in
consideration for the purchase of 19,300,000 shares of Common Stock of
Loto Inc. from Mhalka
Capital Investments Ltd. (“Lender”) at a
purchase price of $1.50 per share, hereby promises to pay to the order
Lender at such time, place and in such manner as Lender may specify in
writing, the principal amount of twenty
eight million nine hundred and fifty thousand
US dollars (US$28,950,000.00) (the “Principal”) pursuant
to the terms and conditions specified herein (this “Note”). The
Borrower shall pay interest on the outstanding principal of this Note at
an annual rate equal to the prime rate, as published by the Federal
Reserve Bank of the United States on its website as of the date of this
Note, plus 1.5% per annum, calculated based on a year of 365 days and
actual days elapsed (the
“Interest”).
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2.
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The
Borrower hereby promises to pay to the order of the Lender the Principal
and all Interest due thereon three (3) years from the date hereof (the
“Due Date”), at such place and in such manner as Lender may specify in
writing.
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3.
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Any
and all fees, costs, expenses and disbursements charged by financial
institutions with respect to wire transfer or other transmittal charges
incurred in connection with delivery of the Principal from the Lender to
the Borrower shall be deemed to have been received by the Borrower from
the Lender and all such amounts shall be included in the calculation of
Principal hereunder.
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4.
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This
Note shall not be transferable by Borrower and the Borrower may not
assign, transfer or sell all or a portion of its rights and interests to
and under this Note to any persons and any such purported transfer shall
be void ab initio. The Lender may transfer and assign this Note
at its sole discretion.
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5.
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The
failure at any time of the Lender to exercise any of its options or any
other rights hereunder shall not constitute a waiver thereof, nor shall it
be a bar to the exercise of any of its options or rights at a later
date. All rights and remedies of the Lender shall be cumulative
and may be pursued singly, successively or together, at the option of the
Lender. The acceptance by the Lender of any partial payment
shall not constitute a waiver of any default or of any of the Lender's
rights under this Note. No waiver of any of its rights
hereunder, and no modification or amendment of this Note, shall be deemed
to be made by the Lender unless the same shall be in writing, duly signed
on behalf of the Lender; and each such waiver shall apply only with
respect to the specific instance involved, and shall in no way impair the
rights of the Lender in any other respect at any other
time.
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6.
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Any
term or condition of this Note may be waived at any time by the party that
is entitled to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf of
the party waiving such term or
condition.
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4
[Ontario Company]
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Promissory
Note
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7.
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The
Borrower represents and warrants that this Note is the valid and binding
obligation of the Borrower, fully enforceable in accordance with its
terms. The execution and delivery by the Borrower of this Note,
the performance by the Borrower of its obligations hereunder and the
consummation of the transactions contemplated hereby and thereby does not
and will not: (a) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the Borrower’s charter
instruments; (b) conflict with or result in a violation or breach of any
term or provision of any law or order applicable to the Borrower or any of
its assets and properties; or (c) (i) conflict with or result in a
violation or breach of, or (ii) result in or give to any person any rights
or create any additional or increased liability of the Borrower under or
create or impose any lien upon, the Borrower or any of its assets and
properties under, any contract or permit to which the Borrower is a party
or by which its assets and properties are bound. In the event
of a default by the Borrower, the Lender shall have recourse only against
the Borrower and not against any and all officers, directors or
shareholders of the Borrower.
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8.
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If
any provision of this Note is held to be illegal, invalid or unenforceable
under any present or future Law, and if the rights or obligations of any
party hereto under this Note will not be materially and adversely affected
thereby, (i) such provision will be fully severable; (ii) this Note will
be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof; (iii) the remaining
provisions of this Note will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance here from; and (iv) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of
this Note a legal, valid and enforceable provision as similar in terms to
such illegal, invalid or unenforceable provision as may be
possible.
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9.
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Any
notice, authorization, request or demand required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given
two days after it is sent by an internationally recognized delivery
service to the address of record of the Lender or the Borrower,
respectively. Any party may change its address for such
communications by giving notice thereof to the other parties in conformity
with this Section.
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10.
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Any
controversy or claim arising out of or relating to this Note, or the
breach thereof, shall be settled exclusively by binding arbitration in
Toronto, Ontario, Canada pursuant to the rules of an arbitral forum
mutually agreed upon by the Borrower and the Lender. In the
event that an arbitral forum is not agreed upon after delivery of notice
by the initiating party, such arbitration and forty-five days after
confirmed receipt of such notice by the other party, then any court having
competent jurisdiction over the Borrower and the Lender shall have full
power and authority to appoint an arbitrator in Toronto, Ontario, Canada,
who shall be a solicitor with not less than ten years corporate law
experience. The fees and costs of such arbitration shall be
paid by the non-prevailing party. If reference to law is
required for any reason, this Note shall be deemed to be governed by and
construed under the laws of the State of New
York.
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4
[Ontario Company]
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Promissory
Note
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11.
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A
default shall exist on this Note if any of the following occurs and is
continuing: (i) Failure to pay Principal and any accrued
Interest on the Note on or before the Due Date; (ii) Failure by the
Borrower to perform or observe any other covenant or agreement of the
Borrower contained in this Note; (iii) A custodian, receiver, liquidator
or trustee of the Borrower, or any other person acting under actual or
purported force of law takes ownership, possession or title to Borrower
property; (iv) any of the property of the Borrower is sequestered by court
order; (v) a petition or other proceeding, voluntary or otherwise is filed
by or against the Borrower under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of indebtedness, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in effect;
or (vi) the Borrower makes an assignment for the benefit of its creditors,
or generally fails to pay its obligations as they become due, or consents
to the appointment of or taking possession by a custodian, receiver,
liquidator or trustee of the Borrower or all or any part of its
property. Upon any such default, the Borrower shall immediately
notify the Lender, and upon notice to the Borrower, the Lender may declare
the Principal of the Note, plus accrued Interest, to be immediately due
and payable, upon which such Principal and accrued Interest shall become
due and payable immediately.
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12.
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As
a security for the payment of this Note, the Borrower shall place stock
certificates representing 19,300,000 shares of the common stock of Loto
Inc. (the “Shares”) into escrow with the law firm designated by Lender
(the “Escrow Agent”). The Escrow Agent shall release to
Borrower all stock certificates representing the Shares from escrow upon
the receipt of written notification from both the Seller and the Borrower
that this Note has been paid in full. The Borrower may not
pledge, sell, loan or otherwise create any direct or contingent
third-party ownership interest in the Shares until such time as this Note
has been paid in full.
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13.
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The
Borrower, any endorser, or guarantor hereof or in the future (individually
an "Obligor" and collectively "Obligors") and each of them jointly and
severally: (a) waive presentment, demand, protest, notice of
demand, notice of intent to accelerate, notice of acceleration of
maturity, notice of protest, notice of nonpayment, notice of dishonor, and
any other notice required to be given under the law to any Obligor in
connection with the delivery, acceptance, performance, default or
enforcement of this Note, any endorsement or guaranty of this Note, any
pledge, security, guaranty or other documents executed in connection with
this Note; (b) consent to all delays, extensions, renewals or other
modifications of this Note, or waivers of any term hereof or thereof, or
release or discharge by the Lender of any of Obligors, or release,
substitution or exchange of any security for the payment hereof, or the
failure to act on the part of the Lender or any indulgence shown by the
Lender (without notice to or further assent from any of Obligors), and
agree that no such action, failure to act or failure to exercise any right
or remedy by the Lender shall in any way affect or impair the Obligations
(as hereinafter defined) of any Obligors or be construed as a waiver by
the Lender of, or otherwise affect, any of the Lender's rights under this
Note, under any endorsement or guaranty of this Note; (c) if the Borrower
fails to fulfill its obligations hereunder when due, agrees to pay, on
demand, all costs and expenses of enforcement of collection of this Note
or of any endorsement or guaranty hereof and/or the enforcement of the
Lender's rights with respect to, or the administration, supervision,
preservation, protection of, or realization upon, any property securing
payment hereof, including, without limitation, all attorney's fees, costs,
expenses and disbursements, including, without further limitation, any and
all fees related to any legal proceeding, suit, mediation arbitration, out
of court payment agreement, trial, appeal, bankruptcy proceedings or any
other actions of any nature whatsoever required on the part of Lender or
Lender’s representatives to enforce this Note and the rights hereunder;
and (d) waive the right to interpose any defense, set-off or
counterclaim of any nature or
description.
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Page 3 of
4
[Ontario Company]
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Promissory
Note
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14.
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The
Borrower will not, by amendment of its Certificate of Incorporation or
through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
the Borrower, but will at all times in good faith assist in the carrying
out of all the provisions of this Agreement and in the taking of all such
action as may be necessary or appropriate in order to protect the rights
of the Lender of this Note against impairment. This Note shall
be enforceable against all successors and assigns of
Borrower. Borrower hereby covenants that all of its
subsidiaries shall jointly and severally perform this Agreement to the
same and full extent on behalf of Borrower if Borrower is unable to
perform.
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15.
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This
Note supersedes all prior discussions and agreements between the parties
with respect to the subject matter hereof and thereof and contains the
sole and entire agreement between the parties hereto with respect to the
subject matter hereof.
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16.
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If
the Lender loses this Note, the Borrower shall issue an identical
replacement note to the Lender upon the Lender's delivery to the Borrower
of a customary agreement to indemnify the Borrower reasonably satisfactory
to the Borrower for any losses resulting from issuance of the replacement
note.
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17.
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The
terms and conditions of this Note shall inure to the benefit of and be
binding upon the respective successors and assigns of the
parties. Nothing in this Note, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities
under or by reason of this Note, except as expressly provided in this
Note.
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IN
WITNESS WHEREOF, the Borrower has caused this Note to be dated, executed and
issued on its behalf, by its duly appointed and authorized officer, as of the
date first above written.
2238646
Ontario Inc.
By:
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/s/ Jason Randall Barrs
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Name:
Jason Randall Barrs
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Title:
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