PROMISSORY NOTE
| US$ 900,000.00 |
[__________]
|
| 1. |
FOR
VALUE RECEIVED, on [_____________], Arimathea
Limited,
an Isle of Man incorporated Company limited by shares and of 00 Xxxxx
Xxxxxx Xxxxxxx Xxxx of Man (the "Borrower"), hereby promises to pay
to the
order of Rudana
Investment Group AG
("Lender")
of
Xxxxxxxxxxxxxx 00, Xxx 0000, Xxxxxxxxxxx at such time, place and
in such
manner as Lender may specify in writing, the principal amount of
Nine
Hundred Thousand
US dollars (US$900,000.00)
(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 the annual rate of -----* per annum, calculated
based on a year of 365 days and actual days elapsed (the
“Interest”).
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| 2. |
The
Borrower hereby promises to pay to the order of the Lender the Principal
and all Interest due thereon within thirty calendar (30) days upon
delivery to the Borrower of written notice which may be given at
any time
after December 31, 2010 (the “Due Date”), at such place and in such manner
as Lender may specify in writing. The Borrower may prepay this Note
at any
time without penalty.
|
| 3. |
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. |
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.
|
| 5. |
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. |
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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| Arimathea Limited |
| 7. |
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.
|
| 8. |
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. |
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. |
This
Note shall be governed by and construed under the laws of Switzerland.
Each party hereby irrevocably consents to the jurisdiction of the
courts
of any competent jurisdiction over one or more of the parties. In
any such
litigation the Borrower waives personal service of any summons, complaint
or other process and agrees that the service thereof may be made
by
certified or registered mail directed to the registered corporate
office
of Borrower in the State of its incorporation. The Borrower hereby
expressly waives trial by jury in any litigation in any court with
respect
to, in connection with, or arising out of this Note or the validity,
protection, interpretation, collection or enforcement hereof and
the
Borrower hereby waives the right to interpose any setoff or non-compulsory
counterclaim or cross-claim in connection with any such litigation,
irrespective of the nature of such setoff, counterclaim or
cross-claim.
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| 11. |
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. Interest
upon
default shall thereafter accrue at the rate of 15% per annum, calculated
based on a year of 365 days and actual days elapsed from the date
of such
default.
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| 12. |
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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| 13. |
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 Xxxxxxxx. Borrower
hereby covenants that all of its subsidiaries and affiliates 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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| Arimathea Limited |
| 14. |
This
Note and all matters related hereto shall be governed, construed
and
enforced under the laws of
Switzerland.
|
| 15. |
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. |
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. |
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. This Note
may be
relied upon as fully binding without countersignature by the Lender.
|
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.
ARIMATHEA
LIMITED
By: /s/
X.
Xxxxxx
Name:
X.
Xxxxxx
Title:
Authorized
Officer
*Portions
of this Exhibit have been omitted pursuant to a request for confidentiality
under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. A
copy of this Exhibit with all sections intact has been filed separately with
the
Securities and Exchange Commission.
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