Attached files
| file | filename |
|---|---|
| 10-K - Umami Sustainable Seafood Inc. | v197709_10k.htm |
| EX-32 - Umami Sustainable Seafood Inc. | v197709_ex32.htm |
| EX-4.3 - Umami Sustainable Seafood Inc. | v197709_ex4-3.htm |
| EX-4.2 - Umami Sustainable Seafood Inc. | v197709_ex4-2.htm |
| EX-31.2 - Umami Sustainable Seafood Inc. | v197709_ex31-2.htm |
| EX-31.1 - Umami Sustainable Seafood Inc. | v197709_ex31-1.htm |
| EX-10.14 - Umami Sustainable Seafood Inc. | v197709_ex10-14.htm |
| EX-10.12 - Umami Sustainable Seafood Inc. | v197709_ex10-12.htm |
| EX-10.13 - Umami Sustainable Seafood Inc. | v197709_ex10-13.htm |
| EX-10.11 - Umami Sustainable Seafood Inc. | v197709_ex10-11.htm |
EXECUTION
COPY
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN ISSUED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND MAY
NOT BE SOLD, TRANSFERRED OR PLEDGED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO BORROWER THAT THE TRANSFER IS EXEMPT FROM
REGISTRATION UNDER APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
UMAMI SUSTAINABLE SEAFOOD INC.
SENIOR SECURED BRIDGE NOTE
|
$2,500,000.00
|
New
York, New York
October
7, 2010
|
FOR VALUE
RECEIVED, the undersigned, Umami Sustainable Seafood Inc., a Nevada corporation,
with an office located at 405 Lexington Avenue, 26th Floor, Suite 2640, New
York, NY 10174, (“Borrower”), hereby
unconditionally promises to pay to UTA Capital LLC, a Delaware company (“Purchaser”), on the
Maturity Date (as defined in Section 4 hereof) to the order of Purchaser, at the
office of Purchaser located at 100 Executive Drive, Suite 330, West Orange, NJ
07052, or such other address designated by Purchaser, in lawful money of the
United States of America and in immediately available funds, the principal
amount of two million five hundred thousand dollars
($2,500,000.00).
1. PURCHASE
AGREEMENT. This Senior Secured Bridge Note (the “Note”) is one
of a series of identical notes(except with respect to principal amount and
maturity date) (collectively, the “Notes”) purchased
under that certain Note and Warrant Purchase Agreement, dated as of October 7,
2010, between Borrower and Purchaser (as may be amended from time to time, the
“Purchase
Agreement”). The Purchaser is entitled to the benefits and
subject to certain obligations under the Purchase Agreement and may enforce the
agreements of Borrower contained therein and exercise the remedies provided
thereby. All words and phrases used herein and not otherwise
specifically defined herein shall have the respective meanings assigned to such
terms in the Purchase Agreement to the extent the same are used or defined
therein.
2. HEADINGS,
ETC. The headings and captions of the numbered paragraphs of
this Note are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions
hereof. Whenever used, the singular number shall include the plural,
the plural the singular, and the words “Purchaser” and “Borrower” shall
include, respectively, their respective successors and assigns; provided, however, that
Borrower shall in no event or under any circumstance have the right to assign or
transfer its obligations under this Note.
3. SECURITY. The
obligations of Borrower hereunder shall be immediately secured by (a) pledges of
(i) 33% of the issued and outstanding shares of capital stock of Baja Aqua-Farms
S.A. de C.V., a Mexican company (“Baja”) that is
presently owned by Borrower, (ii) all of the shares of capital stock of Bluefin
Acquisition Group Inc., a New York corporation and wholly-owned subsidiary of
the Company (“Bluefin”) presently
owned or hereinafter acquired, either directly or indirectly, by the Borrower
(which shares shall be released from the pledge in accordance with the terms of
the Company Pledge and Security Agreement), (iii) any and all of the Borrower’s
inventory, whether presently owned or hereinafter acquired, and any proceeds
arising in connection with the sale or disposition of such inventory and (b)
guarantees of all of the obligations of Borrower hereunder being made by (i)
Baja and (ii) Bluefin; provided, however, that the
Borrower and its Subsidiaries have an obligation to further secure the
obligations hereunder in accordance with the terms of the Purchase Agreement by
pledging a portion (determined in accordance with the terms of the Purchase
Agreement) of the Subsidiaries’ inventory, whether presently owned or
hereinafter acquired, and any proceeds arising in connection with the sale or
disposition of such inventory; provided, further, that,
subject to the terms of the Transaction Documents, upon consummation of the Baja
Acquisition, the Company shall pledge to Purchaser any and all shares of capital
stock of Baja acquired in such acquisition, such that Purchaser is granted a
pledge of no less than 99.984% of the issued and outstanding shares of capital
stock of Baja.
4. MATURITY. This
Note shall mature on March 31, 2011, unless such date shall be otherwise
extended in writing by a Purchaser in its sole discretion (such date, the “Maturity
Date”). On the Maturity Date, all outstanding principal and
any accrued and unpaid interest due and owing under the Note, shall be
immediately paid by Borrower.
5. INTEREST; INTEREST RATE;
PAYMENT; ADDITIONAL INTEREST.
(a) Subject
to adjustment pursuant to paragraph 5(c) below, this Note shall bear interest
(other than interest accruing as a result of a failure by Borrower to pay any
amount within 3 business days of when due as set forth in subparagraph (b)
below) at an annual interest rate initially equal to nine percent (9%) per annum
on the then outstanding principal balance (the “Interest
Rate”). Interest (other than interest accruing as a result of
a failure by Borrower to pay any amount when due as set forth in subparagraph
(b) below) shall accrue until all amounts owed under the Note shall be fully
repaid, and shall be due and payable monthly in arrears on the last business day
of each calendar month following the issuance date. Any accrued and unpaid
interest shall be due at the Maturity Date. Interest shall be
calculated on the basis of the actual number of days elapsed over an assumed
year consisting of three hundred sixty-five (365) days.
(b) If
all or a portion of the principal amount of the Note or any interest payable
thereon shall not be repaid when due whether on the applicable repayment date,
by acceleration or otherwise, such overdue amounts shall bear interest at a rate
per annum that is three percent (3%) above the Interest Rate then in effect,
from the date of such non-payment until such amount is paid in full (before as
well as after judgment) and shall be due
immediately.
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(c) Notwithstanding
anything hereunder, if either Baja or Kali fails to make available to Purchaser
prior to November 16, 2010, a sufficient amount of Baja Inventory and Kali
Inventory, as applicable, to satisfy their respective obligations pursuant to
the terms of the Purchase Agreement, the Baja Subsidiary Security Agreement and
the Kali Subsidiary Security Agreement (the “Collateral
Agreements”), for any reason whatsoever, then, the amount of interest
payable by the Company hereunder shall be increased to an interest rate equal to
13.5% per annum, which rate shall remain in effect until Baja and Kali each make
available to Purchaser a sufficient amount of inventory to satisfy their
respective obligations under the Collateral Agreements.
(d) Notwithstanding
anything hereunder, if the Company fails, for any reason whatsoever, prior to
December 16, 2010, to (i) consummate the Baja Acquisition and own 99.984% of the
issued and outstanding capital stock of Baja, or (ii) pledge all shares acquired
in connection with such acquisition to Purchaser in accordance with such terms
set for in the Transaction Documents, then, the amount of interest payable under
the Notes shall be increased 50% to an interest rate of 13.5% per annum until
such time as the Company shall have fulfilled its obligations set forth under
Section 6.2(e) of the Purchase Agreement.
(e) All
payments to be made by Borrower hereunder shall be made, without setoff or
counterclaim, in lawful money of the United States by check or wire transfer in
immediately available funds.
6. VOLUNTARY AND MANDATORY
PREPAYMENT;
PAYMENT RIGHTS
UPON MERGER, CONSOLIDATION, ETC.;
(a) The Borrower shall have the right to prepay the
principal amount of this Note, without
penalty or premium, at any time upon two
(2) days prior written notice to Purchaser.
(b) If,
at any time, prior to the Maturity Date, Borrower proposes to consolidate or
effect any other corporate reorganization with, or merge into, another
corporation or entity that previously did not hold, directly or indirectly, more
than twenty percent (20%) of Borrower’s Common Stock, whereby such
corporation or entity immediately subsequent to such consolidation, merger or
reorganization will own capital stock of Borrower or entity surviving such
merger, consolidation or reorganization representing more than fifty (50%)
percent of the combined voting power of the outstanding securities of Borrower
or such entity immediately after such consolidation, merger or reorganization,
or has the right to elect nominees to a represent a majority of Borrower’s Board
of Directors (a “Change of Control
Event”), then Borrower shall provide Purchaser with at least ten (10)
days’ prior written notice of any such proposed action, and Purchaser will, at
its option, have the right to demand immediate payment of all amounts due and
owing under this Note (including all accrued and unpaid interest) in cash or in
Borrower’s Common Stock valued at the closing price of Borrower’s Common Stock
on the date of the mailing of such written notice. Purchaser will
give Borrower written notice of such demand within five (5) days after receiving
notice of the Change of Control Event. All amounts due and owing
hereunder shall be paid by Borrower to Purchaser within five (5) days from the
date of such written notice via federal funds wire transfer(s) of immediately
available funds, or in the case of the issuance of Borrower’s Common Stock in
lieu of cash, the issuance shall take place prior to the consummation of the
Change of Control Event, in accordance with written instructions provided to
Borrower by Purchaser.
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7. ASSURANCES WITH RESPECT
OF PURCHASER
RIGHTS. Borrower shall not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
intentionally avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by Borrower and shall at all times
in good faith assist in the carrying out of all the provisions of this Note and
in taking of all such actions as may be necessary or appropriate in order to
protect the rights of Purchaser against impairment.
8. SENIOR
INDEBTEDNESS. Subject to Section 17, this Note shall be senior
to all other Indebtedness of the Borrower.
9. EVENTS OF
DEFAULT. If any of the following events (each, an “Event of Default”)
shall occur and be continuing:
(a) Borrower
shall fail to pay any amount payable under this Note or any other Transaction
Document within three (3) business days after such payment becomes due in
accordance with the terms hereof;
(b) Borrower
or any Subsidiary shall fail to pay when due, and it shall continue unremedied
for a period of ten (10) calendar days, whether upon acceleration, prepayment
obligation or otherwise, any indebtedness and/or other sums payable by Borrower
or any Subsidiary (other than indebtedness owed to Purchaser under this Note and
the other Transaction Documents); provided that, it shall not constitute an
Event of Default pursuant to this subsection (b) unless the aggregate amount of
all such indebtedness referred to above exceeds $250,000 at any one
time;
(c) dissolution,
termination of existence, suspension (unless fully covered by business
interruption insurance) or discontinuance of business (other than as a result of
a consolidation of one or more of Borrower’s subsidiaries with Borrower or
another subsidiary) or ceasing to operate as going concern of Borrower or any
Subsidiary;
(d) any
material representation or warranty made by Borrower herein, in the Purchase
Agreement or in any other agreement, certificate or instrument contemplated by
this Note or the Purchase Agreement or that is contained in any certificate,
document or financial or other statement furnished by Borrower at any time under
or in connection with this Note or the Purchase Agreement shall have been
incorrect in any material respect on or as of the date made or deemed
made;
(e) any
portion of the Collateral is subjected to a levy of execution, attachment or
other judicial process or any portion of the Collateral is the subject of a
claim (other than by the Pledgee) of a Lien or other right or interest in or to
the Collateral and such levy or claim shall not be cured, disputed or stayed
within a period of forty-five (45) days after the occurrence
thereof;
(f) either
Baja or Kali fails, for any reason whatsoever, to make available to Purchaser
prior to December 16, 2010, a sufficient amount of Baja Inventory and Kali
Inventory, as applicable, to satisfy their respective obligations pursuant to
the terms of the Collateral Agreements;
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(g) the
Company fails, for any reason whatsoever, to, prior to January 1, 2011, to (i)
consummate the Baja Acquisition and own 99.984% of the issued and outstanding
capital stock of Baja, or (ii) pledge all shares acquired in connection with
such acquisition to Purchaser in accordance with such terms set for in the
Transaction Documents;
(h) Borrower
shall default, in any material respect, in the observance or performance of any
obligation or agreement contained in this Note, Sections 6.2, 9, 11, 12 and 13
of the Purchase Agreement, the Company Pledge and Security Agreement, the Baja
Subsidiary Guarantee Agreement, the Bluefin Subsidiary Guarantee, the Kali
Subsidiary Security Agreement, the Baja Subsidiary Security Agreement, or any
other agreement or instrument contemplated by the Transaction Documents, and
such default shall continue unremedied for a period of ten (10) days after
written notice to Borrower of such default; or
(i) (i)
Borrower or any Subsidiary shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, conservatorship or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or Borrower shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against Borrower or any Subsidiary any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an order
for relief of any such adjudication of appointment or (B) remains undismissed,
undischarged or unbonded for a period of forty-five (45) days; or (iii) there
shall be commenced against Borrower or any Subsidiary any case, proceeding other
action seeking issuance of a warrant of attachment, execution, distrait or
similar process against all or any substantial part of its assets that results
in the entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within forty-five (45) days from
the entry thereof; or (iv) Borrower or any Subsidiary shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in
any of the acts set forth in clauses (i), (ii) or (iii) above; or (v) Borrower
or any Subsidiary shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due,
then, and
in any such event, (1) if such event is an Event of Default specified in
subsection (i) above of this Section 9 with respect to Borrower, automatically
this Note (with all accrued and unpaid interest thereon) and all other amounts
owing under this Note shall immediately become due and payable, and (2) if such
event is any other Event of Default, Purchasers holding a majority in original
principal amount of the Notes may, by written notice to Borrower, declare the
Notes (with all accrued and unpaid interest thereon) and all other amounts owing
under this Note to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided in
this Section 9, presentation, demand, protest and all other notices of any kind
are hereby expressly waived by Borrower.
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10. ENFORCEABILITY. The
Borrower acknowledges that this Note and Borrower’s obligations under this Note
are and shall at all times continue to be absolute and unconditional in all
respects, and shall at all times be valid and enforceable irrespective of any
other agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to this Note and the obligations of Borrower under this
Note or the obligations of any other Person relating to this
Note. The Transaction Documents set forth the entire agreement and
understanding of Purchaser and Borrower, and Borrower absolutely,
unconditionally and irrevocably waives any and all right to assert any set-off,
counterclaim or crossclaim of any nature whatsoever with respect to this Note or
the obligations of Borrower hereunder, or the obligations of any other Person
relating hereto or thereto or to the obligations of Borrower hereunder or
otherwise in any action or proceeding brought by Purchaser to collect on the
Note, or any portion thereof (provided, however, that the
foregoing shall not be deemed a waiver of Borrower’s right to assert any
compulsory counterclaim maintained in a court of the United States, or of the
State of New York if such counterclaim is compelled under local law or rule of
procedure, nor shall the foregoing be deemed a waiver of Borrower’s right to
assert any claim which would constitute a defense, setoff, counterclaim or
crossclaim of any nature whatsoever against Purchaser in any separate action or
proceeding). The Borrower acknowledges that no oral or other
agreements, conditions, promises, understandings, representations or warranties
exist with respect to the Transaction Documents or with respect to the
obligations of Borrower thereunder, except those specifically set forth in the
Transaction Documents. Borrower agrees to pay all costs and expenses
of Purchaser related to Purchaser’s enforcement of the obligations of Borrower
hereunder and the collection of all sums payable hereunder, including but not
limited to reasonable attorneys’ fees and expenses, irrespective of whether
litigation is commenced. Any such amounts shall be payable on demand,
with interest at the rate provided above for overdue principal and
interest.
11. WAIVER. Borrower
waives presentment, demand for payment, notice of dishonor and any or all
notices or demands in connection with the delivery, acceptance, performance,
default or enforcement of any Transaction Document now or hereafter required by
applicable law, and consents to any or all delays, extensions of time, renewals
or releases with respect to any Transaction Document, and of any available
security therefor, and agrees that no failure or delay on the part of Purchaser,
in the exercise of any power, right or remedy under this Note shall impair such
power, right or remedy or shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude other or
further exercise of such or any other power, right or remedy. No
notice to or demand on Borrower shall be deemed to be a waiver of the obligation
of Borrower or of the right of Purchaser, to take further action without further
notice or demand as provided in any of the Transaction Documents.
12. AMENDMENTS. This
Note may not be modified, amended, changed or terminated orally, except by an
agreement in writing signed by Borrower and the Purchaser. Any
amendment or waiver effected in accordance with this Section 12 shall be binding
upon Borrower, Purchaser and each transferee of this Note.
13. USURIOUS INTEREST
RATE. Notwithstanding anything to the contrary contained in
this Note, the interest paid or agreed to be paid hereunder shall not exceed the
maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”). If
Purchaser shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Note or, if it exceeds
such unpaid principal, shall be refunded to Borrower. In determining whether the
interest contracted for, charged, or received by Purchaser exceeds the Maximum
Rate, Borrower may, to the extent permitted by applicable law, (a) characterize
any payment that is not principal as an expense, fee or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of this
Note.
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14. COUNTERPARTS. This
Note may be executed in any number of counterparts, each of which will be deemed
to be an original and all of which together will constitute a single
agreement.
15. NOTICES. Any
notice required or permitted by this Note shall be in writing and shall be
deemed sufficient upon delivery, when delivered personally or by a
nationally-recognized delivery service (such as Federal Express or UPS), or
seventy-two (72) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, and in all cases addressed to the party
to be notified at such party’s address as set forth above or as subsequently
modified by written notice.
16. GOVERNING LAW; JURISDICTION;
WAIVER OF JURY TRIAL. This Note and all acts and transactions
pursuant hereto shall be governed by and construed in accordance with the laws
of the State of New York, without regard to principles of conflicts of
laws. The Borrower hereby irrevocably consents to the exclusive
jurisdiction of any federal or state court located in the State of New York and
consents that all service of process be sent by nationally recognized overnight
courier service directed to Borrower at Borrower’s address set forth herein and
service so made will be deemed to be completed on the business day after deposit
with such courier. The Borrower acknowledges and agrees that the
venue provided above is the most convenient forum for both Purchaser and
Borrower. The Borrower waives any objection to venue and any
objection based on a more convenient forum in any action instituted under this
Note. THE BORROWER
AND THE PURCHASER (BY ACCEPTANCE OF THIS NOTE) MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS THAT THEY MAY NOW OR
HEREAFTER HAVE UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE
THEREOF TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY,
INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS OR ACTIONS OF THE PURCHASER RELATING TO ENFORCEMENT OF THIS
NOTE. EXCEPT AS PROHIBITED BY APPLICABLE LAW, THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM
OR RECOVER IN ANY LITIGATION RELATING TO ENFORCEMENT OF THIS NOTE ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. THIS WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR THE PURCHASER TO MAKE FUNDS AVAILABLE TO THE BORROWER AND TO
ACCEPT THIS NOTE.
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17. PARI PASSU
NOTES. Purchaser acknowledges and agrees that the payment of
all or any portion of the outstanding principal amount of this Note and all
interest hereon shall be pari
passu in right of payment and in all other respects with the other
Notes. In the event Purchaser receives payments in excess of its pro
rata share of the Borrower’s payments to the holders of all of the Notes, then
Purchaser shall hold in trust all such excess payments for the benefit of the
holders of the other Notes and shall pay such amounts held in trust to such
other holders upon demand by such holders.
[Signature
page follows]
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IN
WITNESS WHEREOF, Borrower has duly executed this Senior Secured Bridge Note as
of the date first written above.
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BORROWER:
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UMAMI
SUSTAINABLE SEAFOOD INC.
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By:
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Name:
Oli Valur Steindorsson
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Title: President
and Chief Executive Officer
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Address:
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405
Lexington Avenue
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26th
Floor, Suite 2640
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New
York, NY 10174
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Facsimile:
212 -___-____
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