THE LOAN REPRESENTED BY THIS PROMISSORY NOTE IS SUBJECT TO A LOAN AGREEMENT
DATED AS OF APRIL 13, 2001, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE
OF THE BORROWER AND WILL BE FURNISHED TO THE HOLDER ON REQUEST TO THE SECRETARY
OF THE BORROWER.
PROMISSORY NOTE
Up to $15,000,000.00 Los Angeles, California
Date: April 13, 2001
FOR VALUE RECEIVED, the undersigned XXXXXXXXXXXXXXXXX.XXX, INC., a Delaware
corporation ("Borrower"), hereby promises to pay to ULTIMATE HOLDINGS, LTD., a
Bermuda limited corporation ("Holder"), at such place as Holder may specify, in
lawful money of the United States of America, the principal sum of all loans
made by Holder to Borrower (the "Loans") made by the Holder to the Borrower
dated April 13, 2001 (the "Agreement"), in the principal amounts set forth on
Schedule A hereto, between Borrower and Holder, on or before October 13, 2002
(the "Maturity Date"), plus interest on the principal amount outstanding from
time to time hereunder at a rate equal to the lesser of (i) the maximum lawful
rate or (ii) nine percent (9%) per annum. Interest shall be calculated in
arrears through the last day of each month and shall be due and payable on the
date that the loan is funded as more fully set forth below in Section 1.
Interest shall be computed on the basis of a 365 or 366-day year, as applicable.
1. LOAN AGREEMENT. This Note is issued pursuant to that certain Loan
Agreement (the "Agreement") between the Borrower and the Holder, and dated as of
April 13, 2001. The terms of this Note include those stated in the Agreement.
This Note is subject to, and qualified by, all such terms, certain of which are
summarized hereon, and the holder of this Note is referred to the Agreement for
a statement of such terms.
This Note is an obligation of the Borrower limited to the aggregate
principal amount of up to $15,000,000.
The Holder, by accepting this Note, shall be bound by and entitled to the
benefits of the Agreement, as the same may be amended from time to time pursuant
to the provisions thereof. All capitalized terms that are used in this Note but
not otherwise defined herein are intended to have the meanings assigned to such
terms in the Agreement.
2. Advances; Payments. From time to time, and subject to the accuracy of
Borrower's representations in the Agreement, Holder will deliver to Borrower in
immediately available funds the principal amounts specified in a Draw Down
Notice and set forth in Schedule A (net of any costs and expenses to be paid by
Borrower to Holder or its counsel).
All payments under this Agreement shall be applied first to fees and
expenses, then to interest and then to principal. Any principal or interest
payments on this Agreement outstanding after the occurrence and during the
continuance of a default under this Agreement shall bear interest at a rate
equal to the lesser of (i) the lawful legal rate or (ii) five percent (5%) above
the interest rate otherwise applicable under this Agreement.
3. Prepayments. Borrower may, from time to time, prepay the loan evidenced
hereby, in whole or in part, so long as each partial prepayment of principal is
equal to or greater than $50,000 and Borrower has given Holder two (2) or more
business days' written notice of such optional prepayment. Any such optional
prepayment of principal shall be without premium or penalty. Each prepayment of
principal under this Section shall be accompanied by all interest then accrued
and unpaid on the principal so prepaid. Any principal prepaid pursuant to this
Section shall be in addition to, and not in lieu of, all payments otherwise
required to be paid under this Agreement at the time of such prepayment.
4. Events of Default.
If certain Events of Default occur and are continuing, the Holder may
declare all sums owing and to become owing under the Note immediately due and
payable. After the occurrence and during the continuance of any Event of
Default, all payments on this Note shall be applied first to the payment of any
costs, fees or other charges incurred in connection with the indebtedness
evidenced hereunder, next to the payment of accrued interest, and then to the
reduction of the principal amount hereof. "Event of Default" is defined in
Section 4 of the Agreement.
5. Miscellaneous.
(a) Reliance on and Survival of Representations. All representations,
warranties, covenants and agreements of Borrower herein shall be deemed to be
material and to have been relied upon by Holder and shall survive the execution
and delivery of this Agreement and of the Securities, for so long as the loan
remains outstanding.
(b) Successors and Assigns. This Agreement shall bind and inure to the
benefit of and be enforceable by Borrower, Holder and each of their respective
successors and assigns, and, in addition, shall inure to the benefit of and be
enforceable by each person who shall from time to time be a holder of the loan.
Holder shall be permitted to transfer the Securities in accordance with their
terms and in accordance with applicable restrictions under applicable federal
and state securities laws.
(c) Notices. All notices and other communications provided for in this
Agreement shall be in writing and delivered by registered or certified mail,
postage prepaid, or delivered by overnight courier (for next business day
delivery) or telecopied, addressed as follows, or at such other address as any
of the parties hereto may hereafter designate by notice to the other parties
given in accordance with this Section:
1) if to the Borrower:
XxxxxxxXxxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx.
Xxx Xxxx, Xxxxxxxxxx
Attn: Ramy El-Batrawi
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy of any notice to:
Nida & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
2) if to the Lender:
Ultimate Holdings, Ltd.
13 Parliament St.
Xxxxxxxx, XX 12
Bermuda
Attn: Xxxxxxxx Xxxxxxxx
Telephone:
Telecopier: (000) 000 0000
With a copy of any notice to:
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Telephone:
Telecopier:
Any such notice or communication shall be deemed to have been duly given on
the fifth day after being so mailed, the next business day after delivery by
overnight courier, when received when sent by telecopy or upon receipt when
delivered personally.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures may be
exchanged by telecopy, with original signatures to follow. Each of the parties
hereto agrees that it will be bound by its own telecopied signature and that it
accepts the telecopied signatures of the other parties to this Agreement. The
original signature pages shall be forwarded to Holder or its counsel and Holder
or its counsel will provide all of the parties hereto with a copy of the entire
Agreement.
(e) Amendments. This Agreement may only be amended by a writing duly
executed by the parties hereto.
(f) No Recourse Against Others. No director, officer, employee or
stockholder, as such, of the Borrower, shall have any liability for any
obligations of the Borrower under this Note or the Agreement or for any claim
based on, in respect of or by reason of such obligations or their creation
except as provided in the Agreement.
(g) Severability. If any term or provision of this Agreement or any other
document executed in connection herewith shall be determined to be illegal or
unenforceable, all other terms and provisions hereof and thereof shall
nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable law.
(h) Governing Law; Submission to Process. THIS AGREEMENT AND ALL
AMENDMENTS, SUPPLEMENTS, WAIVERS AND CONSENTS RELATING HERETO OR THERETO SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE BORROWER HEREBY
IRREVOCABLY SUBMITS ITSELF TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS SITTING IN THE STATE OF ILLINOIS AND AGREES AND CONSENTS THAT
SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDINGS RELATING HERETO
BY ANY MEANS ALLOWED UNDER ILLINOIS OR FEDERAL LAW. THE BORROWER IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH PROCEEDING BROUGHT
IN SUCH COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. THE BORROWER SHALL APPOINT AN AGENT FOR
SERVICE OF PROCESS IN ILLINOIS AND SHALL NOTIFY HOLDER OF ANY FUTURE CHANGE
THEREIN.
(i) Further Assurances. Borrower agrees promptly to execute and deliver
such documents and to take such other acts as are reasonably necessary to
effectuate the purposes of this Agreement.
(j) Headings. The headings contained herein are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
(k) Assignments and Participations. Borrower may not assign its rights or
obligations hereunder or under the loan without the prior written consent of
Holder. Holder may assign all or any portion of the loan or Warrant without the
prior consent of Borrower. Holder may sell or agree to sell to one or more other
persons a participation in all or any part of any of the loan or Warrant without
the prior consent of Borrower. Upon surrender of the loan or Warrant, Borrower
shall execute and deliver one or more substitute notes, warrants or other
securities in such denominations and of a like aggregate unpaid principal amount
or other amount issued to Holder and/or to Holder's designated transferee or
transferees. Holder may furnish any information in the possession of Holder
concerning Borrower, or any of its respective subsidiaries, from time to time to
assignees and participants (including prospective assignees and participants).
(l) Waivers; Indemnity. Borrower waives presentment and demand for payment,
notice of dishonor, protest of this Agreement, and shall pay all costs of
collection when incurred, including reasonable attorneys' fees, costs and
expenses. Borrower shall indemnify and hold harmless from any claim, obligation
or liability (including without limitation reasonable attorneys fees and
expenses) arising out of this Agreement or the transactions contemplated under
the Loan Documents.
(m) JURY WAIVER. HOLDER AND BORROWER EACH WAIVES ANY RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THE LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year set forth above.
LENDER:
ULTIMATE HOLDINGS, LTD.,
a Bermuda limited company
By:____________________________
Name: ___________________
Title: __________________
:
BORROWER:
XXXXXXXXXXXXXXXXX.XXX, INC.,
a Delaware corporation
By:____________________________
Name: ___________________
Title: ____________________
