Attached files
| file | filename |
|---|---|
| 8-K - Sucampo Pharmaceuticals, Inc. | v206736_8k.htm |
| EX-2.1 - Sucampo Pharmaceuticals, Inc. | v206736_ex2-1.htm |
| EX-10.1 - Sucampo Pharmaceuticals, Inc. | v206736_ex10-1.htm |
| EX-10.3 - Sucampo Pharmaceuticals, Inc. | v206736_ex10-3.htm |
THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL TO THE
TRANSFEROR, REASONABLY SATISFACTORY TO THE MAKERS AS TO FORM, SUBSTANCE AND
OPINING COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS PURSUANT TO AND IN
COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND SUCH LAWS.
SUBORDINATED
UNSECURED
PROMISSORY NOTE
Initial
Principal Amount: $25,941,051
Date:
December 23, 2010
For value
received, by execution and delivery of this Subordinated Unsecured Promissory
Note (as amended, restated, supplemented or otherwise modified from time to
time, this “Note”), Ambrent
Investments S.à r.l., a company organized
under the laws of Luxembourg (the “Borrower”), hereby
promises to pay to Sachiko Kuno Revocable Trust Under Trust Agreement dated
December 20, 2002, (the “Lender”), the
principal sum of Twenty-Five Million, Nine Hundred Forty-One Thousand, Fifty-One
($25,941,051) Dollars ($) plus the aggregate principal amount of all PIK
Interest (as defined below), together with interest accruing thereon from the
date hereof (or the date of incurrence of such PIK Interest) at the Interest
Rate (as defined below) applicable from time to time as set forth herein, as
provided hereunder upon the following terms and conditions:
1. Background. This Note is
being issued by the Borrower to the Lender pursuant to the Stock Purchase
Agreement, dated as of December 23, 2010 (as amended, restated, supplemented or
otherwise modified from time to time, the “Stock Purchase
Agreement”), by and among the Lender and Ryuji Ueno Revocable Trust Under
Trust Agreement dated December 20, 2002 (collectively with the Lender, the
“Shareholders”), Dr.
Ryuji Ueno, an individual (“Ueno”), and Dr.
Sachiko Kuno, an individual (“Kuno” and
collectively with Ueno, the “Principals” and
together with the Shareholders, each a “Seller” and
collectively, the “Sellers”), Sucampo
Pharmaceuticals, Inc., a Delaware corporation (“Parent”), and the
Borrower, pursuant to which the Borrower purchased from the Shareholders all of
the issued and outstanding shares (collectively, the “Shares”) of the
capital stock of Sucampo AG, a company organized under the laws of Switzerland,
to evidence the obligation of the Borrower to pay to the Lender a portion of the
Purchase Price being paid by the Borrower to the Lender for the Shares under the
Stock Purchase Agreement. Any capitalized terms used but not defined
in this Note have the respective meanings set forth in the Stock Purchase
Agreement.
2. Payments of Principal and
Interest.
(a) (i) Except
as set forth in Subsection 2(b) or
Section 3
below, during the period commencing on the date hereof and ending on December 1,
2017 (the “Maturity
Date”), Borrower shall pay to the Lender, installments of principal,
together with accrued and unpaid interest at the Interest Rate thereon under
this Note with respect to each such annual or semi-annual period, as applicable,
as set forth on the payment schedule attached hereto as Schedule A (as the
same shall be amended to reflect periodic changes in the Interest Rate); provided, however,
notwithstanding the foregoing, all accrued and unpaid interest for the period
commencing on the date hereof and ending on December 1, 2012 (“PIK Interest”) shall
not be paid in cash and shall instead be added to the principal balance of this
Note on December 1, 2011 and December 1, 2012, respectively, and shall,
thereafter, constitute additional principal amounts for all purposes
hereunder.
-1-
(ii) The
original principal balance, together with any PIK Interest incurred and
outstanding from time to time under this Note, shall bear interest at the
Interest Rate, as in effect from time to time.
(iii) “Interest Rate” shall
mean the per annum rate of interest determined on the basis of the sum of: (1)
the rate for deposits in United States Dollars at the time of determination for
a period equal to the Interest Period (as defined below), commencing on the
first day of the relevant Interest Period, appearing on any mutually acceptable
publicly available service (including, publicly available websites) for
displaying eurodollar rates as may be reasonably selected by the Borrower as of
8:00 a.m. (California time) (or as soon thereafter as practical), two (2)
Business Days prior to such date (the “LIBOR Rate”), plus
(2) a margin equal to 4.00%. “Interest Period”
means, a period of six (6) months, commencing on December 1 and June 1 of each
year, provided that the first Interest Period shall commence on the effective
date of this Note and end on May 31, 2011. Upon each resetting of the
Interest Rate in accordance with this provision, the interest payment
amounts under this Note over the remaining period of this Note shall be
recalculated in accordance with this Section 2(a)(iii) and
the Borrower and the Lender shall prepare a revised version of the payment
schedule attached hereto as Schedule A stating
the outstanding principal, revised accrued interest and revised payment amounts
under this Note, giving effect to such changes, which shall be attached to this
Note and supersede and replace the Schedule A to this
Note theretofore in effect.
(iv) The
outstanding principal balance of the Note, together with any accrued and unpaid
interest thereon, shall be due and payable in full on the Maturity
Date.
(v) Each
payment shall be made in cash by wire transfer of immediately available funds to
the Lender’s account, as designated in writing by the Lender to the
Borrower.
(b) Notwithstanding
anything to the contrary in Section 2(a),
Borrower shall not be in default hereunder if it fails to make any payment(s) of
principal or accrued and unpaid interest on this Note pursuant to the provisions
of any Subordination Agreement (as defined below), and such unpaid interest
shall accrue interest at the Interest Rate from the date each such payment was
originally due and until actually paid, and the original amount(s) together with
such accrued interest thereon shall be paid by the Borrower upon resumption of
payments by the Borrower of interest and other amounts due under this Note in
accordance with any such Subordination Agreement. Upon any resumption
of payments by the Borrower of interest and other amounts due under this Note in
accordance with the Subordination Agreements, the interest payment amounts
under this Note over the remaining period of this Note shall be recalculated in
accordance with this Section 2(b) and the
Borrower and the Lender shall prepare a revised version of the payment schedule
attached hereto as Schedule A stating
the outstanding principal, revised accrued interest and revised payment amounts
under this Note, giving effect to such changes, which shall be attached to this
Note and supersede and replace the Schedule A to this
Note theretofore in effect.
-2-
3. Set-Off under Stock Purchase
Agreement.
(a) Notwithstanding
anything to the contrary in Section 2, if, while
there is any outstanding principal, accrued and unpaid interest due under this
Note, Borrower elects, pursuant to delivery of a Set-Off Notice pursuant to
Section 8.7 of
the Stock Purchase Agreement (a “Set-Off Election”),
to set-off against any amounts owed under the Note, any amounts payable to the
Purchaser Indemnified Parties for any Damages for which the Purchaser
Indemnified Parties is entitled to indemnification pursuant to Article VIII of the
Stock Purchase Agreement, the outstanding principal and accrued and unpaid
interest owing to the Lender under this Note shall be reduced by 50% of such
set-off amount stated in the Set-Off Notice (“Set-Off Amount”),
with such Set-Off Amount allocated first, against accrued and
unpaid interest under this Note (as adjusted by this provision) and second against outstanding
principal under this Note, the Set-Off Amount so applied to the Note’s balance
shall be deemed to have been paid and satisfied in full, and the Borrower and
the Lender shall prepare a revised version of the payment schedule attached
hereto as Schedule
A stating the revised outstanding principal, revised accrued interest and
revised payment amounts under this Note, giving effect to such set-off effective
as of the issuance date of this Note (including further reduction of (x) accrued
and unpaid interest outstanding hereunder (which shall be recalculated
retroactively to the original issuance date of this Note taking into account the
reduction of the original principal amount effected by the Set-Off Amount as if
it had been made on such original issuance date) and (y) the outstanding
principal amount under this Note by the amount of interest paid as of the
Set-Off Date in excess of the amount that would have accrued had this Note been
originally issued in such reduced principal amount (i.e., all overpayments of
interest due to the reduction of the underlying principal balance shall be
deemed to have been payments of principal and Schedule A shall be revised to
take such deemed principal payments into account when recalculating the revised
principal balance and accrued and unpaid interest), which shall be attached to
this Note and supersede and replace the Schedule A to this
Note theretofore in effect.
(b) Notwithstanding
the foregoing Section
3(a) or anything else to the contrary herein, if a dispute exists with
respect to any Set-Off Election exists and is pending resolution under Section 8.7 of the
Stock Purchase Agreement (a “Set-Off Dispute”),
until such time as such Set-Off Dispute has been finally resolved in accordance
with such dispute resolution provisions, (1) no revisions shall be made to Schedule A, and (2)
any scheduled payments of principal due to the Lender hereunder shall reduced by
the portion of the Set-Off Amount in dispute, which disputed portion of the
Set-Off Amount (the “Disputed Amount”)
shall instead be paid by the Borrower on the relevant payment date (the “Interim Payment
Date”) into an escrow account maintained at an institution mutually
acceptable to the Borrower and the Lender pursuant to an escrow agreement in
form and substance mutually acceptable to the parties under which all interest
or other earnings (if any) on the Disputed Amount shall be allocated and
remitted to the parties in proportion to the portion of the escrowed principal
allocated to the parties in accordance with the resolution of the Set-Off
Dispute. Upon the resolution of the related dispute pursuant to Section 8.7 of the
Stock Purchase Agreement (the “Determination”), (i)
any amount determined therein to be set-off under this Note shall thereafter
constitute the Set-Off Amount with respect to the related Set-Off Election for
all purposes hereunder, and (ii) the Disputed Amount (together with any interest
or earnings thereon) shall be disbursed from escrow and paid to the Lender
and/or the Borrower in accordance with the Determination. To the extent that the
Determination directs the disbursement from escrow account of all or any portion
the Disputed Amount to the Lender then, to the extent the interest or other
earnings earned on such portion of the Disputed Amount disbursed to the Lender
from the escrow account is less than the amount of interest that would have
accrued thereon at the Interest Rate during the period commencing on the Interim
Payment Date and terminating on (but not including) such disbursement date, the
Borrower shall pay to the Lender an amount in cash equal to such accrued and
unpaid interest to the Lender concurrently with such disbursement from the
escrow account. Upon the Determination being made, the Borrower and the Lender
shall prepare a revised version of the payment schedule attached hereto as Schedule A stating
the outstanding principal, revised accrued interest and revised payment amounts
under this Note, giving effect to such changes in the manner provided in Section 3(a), which
shall be attached to this Note and supersede and replace the Schedule A to this
Note theretofore in effect.
-3-
(c) Notwithstanding
anything to the contrary in Section 2, if, while
there is any outstanding principal, accrued and unpaid interest due under this
Note, if a Shortfall is determined to exist pursuant to Section 2.4 of the
Stock Purchase Agreement, then, automatically, and without either party being
required to issue any notice to the other or take any other action, the
outstanding principal and accrued and unpaid interest owing to the Lender under
this Note shall be reduced by 50% of the amount of such Shortfall (the “Shortfall Amount”),
with such Shortfall Amount allocated first, against accrued and
unpaid interest under this Note (as adjusted by this provision) and second against outstanding
principal under this Note, the Shortfall Amount so applied to the Note’s balance
shall be deemed to have been paid and satisfied in full, and the Borrower and
the Lender shall prepare a revised version of the payment schedule attached
hereto as Schedule
A stating the revised outstanding principal, revised accrued interest and
revised payment amounts under this Note, giving effect to such reduction
effective as of the issuance date of this Note (including further reduction of
(x) accrued and unpaid interest outstanding as of the Shortfall Effective Date
(which shall be recalculated retroactively to the issuance date of this Note
taking into account the reduction of the original principal amount effected by
the Shortfall Amount) and (y) the outstanding principal amount under this Note
by the amount of interest paid as of the Shortfall Date in excess of the amount
that would have accrued had this Note been originally issued in such reduced
principal amount (i.e., all overpayments of interest due to the reduction of the
underlying principal balance shall be deemed to have been payments of principal
and Schedule A
shall be revised to take such deemed principal payments into account when
recalculating the revised principal balance and accrued and unpaid interest),
which shall be attached to this Note and supersede and replace the Schedule A to this
Note theretofore in effect.
(d) Except
as expressly set forth in this Section 3, in no
event shall the Borrower be entitled to set-off or otherwise credit towards
amounts outstanding under this Note any amounts due to it by the Lender under
the Stock Purchase Agreement or otherwise.
(e) Notwithstanding
anything to the contrary herein, Borrower shall not be in default hereunder if
it fails to make any payment(s) of principal or accrued and unpaid interest on
this Note on a scheduled payment date due to the operation of Section 3(b);
provided that that the Borrower complies with such section.
4. Subordination.
(a) Anything
in this Note or the Stock Purchase Agreement to the contrary notwithstanding,
all amounts owing to the holder of this Note under this Note, including, without
limitation, principal (including all PIK Interest) and interest (the “Subordinated Debt”),
shall be subordinate and junior in right of payment to all Senior Debt to the
extent set forth in this Section 4 and in any subordination agreement entered
into at any time with the provider or holders of any Senior
Debt.
-4-
(b) Notwithstanding
anything herein to the contrary, the Lenders agree, upon Borrower’s request, to
enter into one or more subordination agreements with the providers of any Senior
Debt, containing such customary terms and provisions as such providers of Senior
Debt shall require (each, a “Subordination
Agreement”).
(c) “Senior Debt” shall mean and include all
obligations (whether now outstanding or hereafter incurred) for the payment of
which the Borrower or Parent is responsible or liable as obligor, guarantor or
otherwise, however such obligations are structured, accrue or are designated
(e.g., senior debt, subordinated debt, second-lien debt, mezzanine debt, or
otherwise) (including any interest accruing subsequent to the commencement of
any bankruptcy or other proceeding under any Insolvency Law (as defined below)
whether or not the claims of holders of such payment obligations for such
interest are allowed in any such proceeding) in respect of any payment
obligations under any related note(s), agreements, security documents and/or
other undertakings, or in connection with any refinancing of all or any portion
thereof.
5. Prepayment.
(a) Voluntary
Prepayments: The Borrower may make pre-payments of the
outstanding principal and accrued and unpaid interest due from the Borrower to
the Lender under this Note solely in cash by wire transfer of immediately
available funds, without premium or penalty, in full or in part, at any
time, each of which shall be deemed first a payment of accrued
and unpaid interest under this Note and second a payment of
outstanding principal under this Note. Upon any such prepayment the Borrower and
the Lender shall prepare a revised version of the payment schedule attached
hereto as Schedule
A stating the revised payment amounts under this Note, giving effect to
such prepayment, which shall be attached to this Note and supersede and replace
the Schedule A
to this Note theretofore in effect.
(b) Mandatory
Prepayments: All amounts then outstanding hereunder shall be
due and payable within five Business Days following the closing of any
acquisition by an unaffiliated third party in an all cash acquisition of all of
the issued and outstanding shares of capital stock of Parent (the “Cash Acquisition
Prepayment”). In addition, at any time when Lender holds
(directly and/or indirectly, of record and beneficially) less than 50% of
Parent’s issued and outstanding voting shares of capital stock (determined on a
fully diluted basis), if a transaction (or series of related transactions) (the
“Change of Control
Transaction”) occurs that (i) results in an unaffiliated third party
acquiring a majority of Parent’s then issued and outstanding voting shares of
capital stock (determined on a fully diluted basis) and (ii) includes any cash
consideration to the holders of Parent’s voting shares of capital stock, then
the outstanding
principal and accrued and unpaid interest due from the Borrower to the
Lender at the time of the closing of such Change of Control Transaction under
this Note shall become due and payable within five Business Days following the
closing of such Change of Control Transaction in an amount (the “Change of Control
Prepayment”) equal to the result determined by multiplying (x) the
aggregate amount of outstanding principal and accrued and unpaid interest under
this Note as of the closing date of the Change of Control Transaction by (y) the
percentage determined by dividing (A) the total cash portion of the
consideration received by all holders of Parent’s voting shares of capital stock
in the Change of Control Transaction by (B) the total consideration received by
such holders in the Change of Control Transaction; provided that in no event
shall the Change of Control Prepayment exceed the aggregate outstanding amount
of principal and accrued and unpaid interest under this Note at such time of
determination. Any Cash Acquisition Prepayment or Change of Control
Prepayment shall be payable in cash by wire transfer of immediately available
funds, without premium or penalty, in full or in part, at any time, each of
which shall be deemed first a payment of accrued
and unpaid interest under this Note and second a payment of
outstanding principal under this Note. Upon the making of any Change of Control
Prepayment that does not satisfy all amounts outstanding under this Note, the
Borrower and the Lender shall prepare a revised version of the payment schedule
attached hereto as Schedule A stating
the revised payment amounts under this Note, giving effect to such Change of
Control Prepayment, which shall be attached to this Note and supersede and
replace the Schedule
A to this Note theretofore in effect.
-5-
6. Events of
Default; Acceleration. Any of the
following, without duplication, will constitute an "Event of Default"
under this Note: (a) the Borrower’s failure to pay any portion of the
outstanding principal and/or accrued and unpaid interest under this
Note within ten (10) days after the same becomes due and payable; (b) the
Borrower’s material breach of any material provision of this Note,
which breach is not remedied within twenty (20) Business Days after written
notice thereof by the Lender to the Borrower; (c) a custodian, trustee,
receiver, agent or similar official being appointed for the Borrower or any
material part of its properties; (d) the Borrower admits in writing its
inability to pay its debts as they become due and/or commences a case under the
U.S. Bankruptcy Code, an assignment for the benefit of creditors proceeding or a
proceeding under any other state or federal insolvency law (collectively, “Insolvency Laws”);
(e) a case or proceeding is commenced against the Borrower under any Insolvency
Law and such case or proceeding is not stayed or dismissed within 90 days after
being commenced; or (f) the Borrower is dissolved (other than pursuant to a
consolidation, amalgamation or merger). Upon the occurrence and
during the continuation of any Event of Default, but subject to the terms and
provisions of all Subordination Agreements then in effect, all outstanding
principal, accrued and unpaid interest and any other amounts due from the
Borrower to the Lender hereunder will, at the option of the Lender, be
immediately due and payable in cash on demand, provided, however, that if any
bankruptcy proceeding is instituted by the Borrower or is instituted by any
creditor of the Borrower (other than a Lender), this Note will automatically
become immediately due and payable in cash without demand. The
Borrower will pay or reimburse the Lender for all out-of-pocket fees, costs and
expenses incurred by Lender (including court costs and reasonable attorneys’
fees) in connection with any Event of Default and any enforcement or collection
proceedings resulting therefrom, which shall be considered additional amounts
due under this Note.
7. Savings
Clause. The Lender and the Borrower
intend to comply at all times with applicable usury and other laws limiting the
amount of interest that may be charged or collected upon borrowed money. If, at
any time, any such laws would be violated by any amounts called for under this
Note, it is the Borrower’s and the Lender’s express intention that the Borrower
not be required to pay any interest on this Note at a rate in excess of the
maximum lawful rate then allowed. The provisions of this Section 7 shall
supersede and control over all other provisions of this Note which may be in
apparent conflict hereunder. In calculating whether any interest
exceeds the lawful maximum, all such interest shall be amortized, prorated,
allocated and spread over the full amount and term of all principal indebtedness
of the Borrower to the Lender and, if through any contingency or event, the
Lender receives or is deemed to receive interest in excess of the lawful
maximum, any such excess shall be deemed to have been applied toward payment of
the principal of any and all then outstanding indebtedness of the Borrower to
the Lender, or if there is no such indebtedness, shall immediately be returned
to the Borrower and the provisions hereof shall be immediately reformed, and the
amounts thereafter collectible under this Note shall be reduced, without the
necessity of the execution of any further documents, so as to comply with the
then applicable law, but so as to permit the recovery of the fullest amount
otherwise called for under this Note. Any such crediting or refund
shall not cure or waive any default by the Borrower under this
Note. The Borrower agrees that in determining whether or not any
interest payable under this Note exceeds the highest rate not prohibited by law,
any non-principal payment (except payments specifically stated in this Note to
be "interest") shall, to the maximum extent not prohibited by law, be an
expense, fee or indemnification amount rather than interest. The term
"applicable law" and similar phrases used in this Section 7 shall mean
the laws of the state of New York, as such laws now exist or may be changed or
amended or come into effect in the future.
-6-
8. Conflict;
Disputes. In the event of
any conflict between the terms of this Note and the Stock Purchase Agreement,
this Note shall control and govern. In the event the parties disagree
upon any revision to Schedule A provided for hereunder or any other matter with
respect to the terms herein (including, without limitation, the occurrence
and/or continuation of any default or Event of Default), such dispute shall be
resolved in accordance with the provisions of Section 9.3 of the
Stock Purchase Agreement.
9. Waiver of
Formalities. In connection
with any demand for payment hereunder, the Borrower expressly waives
presentment, protest, demand for payment, notice of dishonor or any other
formalities of any kind.
10. Notices. All notices,
consents, waivers, agreements and other communications provided for in this Note
shall be provided or made in writing and shall be transmitted by personal
delivery, by nationally recognized overnight courier service, by registered or
certified mail, return receipt requested, postage prepaid, or by telecopy or
other similar electronic mail transmission (with such telecopy or other
electronic mail transmission promptly confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided in this Section
10, and shall be addressed as follows:
|
|
(a)
If to Borrower:
|
Ambrent
Investments S.à r.l.
|
c/o
Sucampo Pharmaceuticals, Inc.
4520 East
West Highway, Third Floor
Bethesda,
MD 20814
Attention:
Thomas J. Knapp, General Counsel
Tel:
(240) 223-3627
Fax:
(240) 209-0727
|
|
with
a copy to:
|
Manatt,
Phelps & Phillips, LLP
|
11355 W.
Olympic Boulevard
Los
Angeles, CA 90064
Attention:
Gordon M. Bava, Esq.
David M.
Grinberg, Esq.
Tel: (310)
312-4000
Fax:
(310) 312-4224
-7-
|
|
(b) If
to the Lender:
|
Sachiko
Kuno Revocable Trust Under
Trust
|
Agreement
dated December 20, 2002
24687
Yacht Club Road
St.
Michaels, MD 20854
|
|
with
a copy to:
|
Dorsey
& Whiteny LLP
|
Suite
1500, 50 South Sixth Street
Minneapolis,
MN 55402-1498
Attention:
William Berens, Esq.
Tel:
(612) 340-2621
Fax:
(612) 340-8827
A party
may designate a new address to which communications shall thereafter be
transmitted by providing written notice to that effect to the other
party. Each communication transmitted in the manner described in this
Section 10
shall be deemed to have been provided, received and become effective for all
purposes at the time it shall have been: (a) delivered to the addressee as
indicated by the return receipt (if transmitted by mail) or the affidavit or
receipt of the messenger (if transmitted by personal delivery or courier
service); (b) presented for delivery to the addressee as so addressed during
normal business hours, if such delivery shall have been rejected, denied or
refused for any reason; or (c) sent, with respect to notices sent by telecopy or
other electronic mail transmission (except that, if not given during normal
business hours for the recipient, shall be deemed to have been given at the
opening of business on the next Business Day for the recipient).
11. Counterparts. This Note may be
signed in any number of counterparts, each of which (when executed and
delivered) shall constitute an original instrument, but all of which together
shall constitute one and the same instrument, respectively. This Note
shall become effective and be deemed to have been executed and delivered by both
parties at such time as counterparts hereto shall have been executed and
delivered by both parties, regardless of whether both parties have executed the
same counterpart. Counterparts may be delivered via facsimile or
other electronic transmission and any counterpart so delivered shall be deemed
to have been duly and validly delivered and be valid and effective for all
purposes.
12. Waivers. No purported
waiver of any provision of this Note shall be binding upon any of the parties to
this Note unless upon the party providing such waiver has duly executed and
delivered to the other party a written instrument which states that it
constitutes a waiver of one or more provisions of this Note and specifies the
provision(s) that are being waived. Any such waiver shall be
effective only to the extent specifically set forth in such written
instrument. Neither the exercise (from time to time and at any time)
by a party of, nor the delay or failure (at any time or for any period of time)
to exercise, any right, power or remedy shall constitute a waiver of the right
to exercise, or impair, limit or restrict the exercise of, such right, power or
remedy or any other right, power or remedy at any time and from time to time
thereafter. No waiver of any right, power or remedy of a party shall
be deemed to be a waiver of any other right, power or remedy of such party or
shall, except to the extent so waived, impair, limit or restrict the exercise of
such right, power or remedy.
13. Amendments. No purported
amendment to any provision of this Note shall be binding upon the parties to
this Note unless the Borrower and the Lender have each duly executed and
delivered to the other party a written instrument which states that it
constitutes an amendment to this Note and specifies the provision(s) that are
being amended.
-8-
14. Entire
Agreement. This Note,
together with the Stock Purchase Agreement, and any other documents expressly
referred to herein, constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all of the previous or
contemporaneous contracts, representations, warranties and understandings
(whether oral or written) by or between the parties with respect to the subject
matter hereof, including any letter of intent or memorandum of terms entered
into by the parties.
15. Severability. If any provision
of this Note shall hereafter be held to be invalid, unenforceable or illegal, in
whole or in part, in any jurisdiction under any circumstances for any reason:
(a) such provision shall be reformed to the minimum extent necessary to cause
such provision to be valid, enforceable and legal while preserving the intent of
the parties as expressed in, and the benefits to such parties provided by, such
provision; or (b) if such provision cannot be so reformed, such provision shall
be severed from this Note and an equitable adjustment shall be made to this Note
(including addition of necessary further provisions to this Note) so as to give
effect to the intent as so expressed and the benefits so
provided. Such holding shall not affect or impair the validity,
enforceability or legality of such provision in any other jurisdiction or under
any other circumstances. Neither such holding nor such reformation or
severance shall affect or impair the legality, validity or enforceability of any
other provision of this Note.
16. Governing
Law. The
interpretation and construction of this Note, and all matters relating hereto,
will be governed by the laws of the State of New York applicable to contracts
made and to be performed entirely within the State of New York without giving
effect to any conflict of law provisions thereof.
17. Assignment. This Agreement
and all of the provisions hereof shall be binding upon, be enforceable by and
inure to the benefit of the parties and their respective successors and
permitted assigns. The Borrower may not assign any of its rights or
obligations under this Note without the prior written consent of the
Lender. The Lender may assign its rights and obligations to any
Affiliate of the Lender, without the consent of Borrower, upon prior written
notice to the Borrower. The Lender may not, without the consent of
Borrower (other than following the occurrence and during the continuation of an
Event of Default), assign all or any portion of its rights under this Note to
any other Person, and this Note and the Lender’s rights hereunder shall only be
assignable in whole (and not in part). Upon the Lender giving notice to the
Borrower of such assignment specifying the Person to which such interest is
being assigned and, if required above, Borrower granting its written
consent to such assignment, each reference herein to the Lender will constitute
a reference to such assignee (as if such assignee were named herein) rather than
the Lender.
18. Remedies. Each of the
parties shall have and retain all rights and remedies, at law or in equity,
including rights to obtain a money judgment, arising out of or relating to a
breach or threatened breach of this Note. The prevailing party in any
proceeding to enforce any provision of this Note shall be entitled to recover
from the losing party all reasonable attorneys’ fees and expenses.
-9-
19. Third
Party Beneficiaries. No Person other
than the Lender and the Borrower is or is intended to be a beneficiary of this
Note, except successors and assigns of the parties, as permitted as provided in
Section 19.
20. Further
Assurances. At any time and
from time to time after the date hereof, each of the parties, at its own cost
and expense, in good faith and in a timely manner, shall use its respective
commercially reasonable efforts to take or cause to be taken all appropriate
actions, do or cause to be done all things necessary, proper or advisable, and
execute, deliver and acknowledge such documents and other papers as may be
required to carry out the provisions of this Note and to give effect to the
consummation of the transactions contemplated by this Note.
21. Interpretation. The language used
in this Note shall be deemed to be the language chosen by the parties to express
their mutual intent and no rule of strict construction shall be applied against
either party. Unless otherwise expressly specified in this
Note:
(a) the
words “hereof”,
“hereby” and
“hereunder,”
and correlative words, refer to this Note as a whole and not any particular
provision;
(b) the
words “includes” and “including”, and
correlative words, are deemed to be followed by the phrase “without
limitation”;
(c) the
word “or” is
not exclusive and is deemed to have the meaning “and/or”;
(d) references
in this Note to a “party” means the
Borrower or the Lender to the "parties" means the
Borrower and the Lender;
(e) words
using the singular or plural number shall also include the plural or singular
number, respectively;
(f)
the section headings contained in this Note
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Note;
(g)
the masculine, feminine or neuter form
of a word includes the other forms of such word and the singular form of a word
includes the plural form of such word;
(h)
references to a Person shall include the successors and
assigns thereof; and
(i)
references made in this Note to Section or Schedule mean a Section
of, or a Schedule to, this Note.
[remainder of page intentionally left
blank; signature page(s) follow]
-10-
IN WITNESS WHEREOF, the
undersigned parties have caused this Note to be duly executed as of the date
written above.
|
THE
BORROWER:
|
||
|
AMBRENT
INVESTMENTS S.À R.L.
|
||
|
By:
|
/s/ James J. Egan | |
|
Name:
James J. Egan
|
||
|
Title:
Authorized Person
|
||
AGREED AND
ACCEPTED:
THE
LENDER:
|
SACHIKO
KUNO REVOCABLE TRUST
UNDER
TRUST AGREEMENT DATED
DECEMBER
20, 2002
|
||
|
By:
|
/s/ Sachiko Kuno
|
|
|
Name:
Sachiko Kuno
|
||
|
Title:
Trustee
|
||
Schedule
A
Amortization
Schedule
· For the first two years, principal
only payments of $3,750,000 with interest to be “paid-in-kind” (i.e. added to
outstanding principal amount (the “Additional
Principal”))
· Remaining principal (plus Additional
Principal) amortized over remaining five years with interest on unpaid amount
payable currently
|
Payment
Number
|
Balance
|
Date
Due
|
Payment
|
Principal
Due
|
Interest Due1
|
New Balance
|
|||||||||||||||
|
1
|
$ | 25,941,051 |
12/01/11
|
$ | 3,750,000 | $ | 3,750,000 | $ | 1,085,2092 | $ | 23,276,260 | ||||||||||
|
2
|
$ | 23,276,260 |
12/01/12
|
$ | 3,750,000 | $ | 3,750,000 | $ | 1,037,4463 | $ | 20,563,706 | ||||||||||
|
2
|
$ | 20,563,706 |
6/01/13
|
$ | 2,316,747 | $ | 1,858,474 | $ | 458,272 | $ | 18,705,232 | ||||||||||
|
4
|
$ | 18,705,232 |
12/01/13
|
$ | 2,316,747 | $ | 1,899,891 | $ | 416,855 | $ | 16,805,340 | ||||||||||
|
5
|
$ | 16,805,340 |
6/01/14
|
$ | 2,316,747 | $ | 1,942,231 | $ | 374,515 | $ | 14,863,109 | ||||||||||
|
6
|
$ | 14,863,109 |
12/01/14
|
$ | 2,316,747 | $ | 1,985,515 | $ | 331,232 | $ | 12,877,594 | ||||||||||
|
7
|
$ | 12,877,594 |
6/01/15
|
$ | 2,316,747 | $ | 2,029,763 | $ | 286,984 | $ | 10,847,831 | ||||||||||
|
8
|
$ | 10,847,831 |
12/01/15
|
$ | 2,316,747 | $ | 2,074,997 | $ | 241,749 | $ | 8,772,834 | ||||||||||
|
9
|
$ | 8,772,834 |
6/01/16
|
$ | 2,316,747 | $ | 2,121,240 | $ | 195,507 | $ | 6,651,594 | ||||||||||
|
10
|
$ | 6,651,594 |
12/01/16
|
$ | 2,316,747 | $ | 2,168,513 | $ | 148,234 | $ | 4,483,081 | ||||||||||
|
11
|
$ | 4,483,081 |
6/01/17
|
$ | 2,316,747 | $ | 2,216,839 | $ | 99,908 | $ | 2,266,242 | ||||||||||
|
12
|
$ | 2,266,242 |
12/01/17
|
$ | 2,316,747 | $ | 2,266,242 | $ | 50,504 | $ | 0 | ||||||||||
1 Libor
rate equal to 0.4571%.
2 Interest
payable of $1,085,209 will be added to principal amount
3 Interest
payable of $1,037,446 will be added to principal amount
-12-