Exhibit 10.1
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$4,598,013 May 23, ▇▇▇▇
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SENIOR PROMISSORY NOTE
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Pursuant to that certain Asset Purchase Agreement dated August 10, 2001,
as amended by Amendment Number One dated May 23, 2002 (the "Agreement") by and
among the undersigned, AIT (USA), Inc., a business corporation organized and
existing under the laws of the State of Ohio ("Maker"), AIT Group plc, a public
limited company organized under the laws of England and the ultimate parent
company of Maker ("Guarantor"), and Information Management Associates, Inc., a
corporation organized under the laws of the State of Connecticut ("Payee"), FOR
VALUE RECEIVED, the Maker promises to pay in legal currency of the United States
of America to the order of Payee the principal sum of $4,598,013 (the "Principal
Amount"), or so much thereof as may be outstanding from time to time, plus
interest at the rate of 9% per annum on the outstanding principal balance hereof
from June 17, 2002 until the payment thereof in full. The principal balance
hereof shall be payable as follows:
(i) on May 28, 2002, $1,098,013 to be paid by certified or
official bank check or wire transfer of immediately available funds;
(ii) on June 19, 2002, $1,000,000 to be paid by certified or
official bank check or wire transfer of immediately available funds;
(iii) on July 17, 2002, $1,000,000 to be paid by certified or
official bank check or wire transfer of immediately available funds; and
(iv) on September 25, 2002, $1,500,000; provided, however, that
the payment on September 25, 2002 in any event shall be in an amount equal to
the aggregate principal amount hereof outstanding on such date, to be paid by
certified or official bank check or wire transfer of immediately available
funds.
All accrued and unpaid interest hereunder shall be payable on July 17,
2002 and September 25, 2002.
All payments and prepayments of interest and principal under this
Promissory Note shall be wired or mailed to Payee in accordance with the wiring
instructions and mailing address set forth in Section 8, or as otherwise
specified in writing by Payee to Maker prior to the due date of such payments.
All payments hereunder shall first be applied to unpaid accrued interest and the
balance, if any, to principal. If however, Payee has incurred costs and expenses
of collection in enforcing this Promissory Note, as described below, such
payments shall first be applied thereto.
1. Payments.
1.1 Payment of Promissory Note. The Promissory Note shall bear
interest and shall be payable in accordance with the terms and conditions
hereof.
1.2 Payment on Non-Business Days. Whenever any payment to be made
pursuant to this Promissory Note is due on a day that is not a business day,
payment shall be made on the next succeeding business day.
1.3 Prepayment. This Promissory Note may be prepaid, in whole or in
part, from time to time, without penalty or premium, provided that there is paid
with each such prepayment, all interest accrued and unpaid on the amount thereof
to the date of payment.
2. Delinquency Charges. The amount of all principal and (to the extent
permitted by then applicable law) all interest which is not paid when due
(whether on a stated payment date or by acceleration) shall bear interest, from
the time such amount becomes due until payment thereof in full, at a rate which
is equal to 12% or the maximum rate of interest, if lower, permitted by
applicable law.
3. Defaults. The occurrence and continuance of any of the following events
or conditions shall, without notice or demand, constitute an "Event of Default"
under this Promissory Note:
3.1 Failure by Maker to pay Payee any sums due to Payee under this
Promissory Note when due;
3.2 The merger, consolidation, dissolution, termination of existence,
suspension or discontinuance of business, insolvency or business failure by
either the Maker or the Guarantor;
3.3 Maker or Guarantor shall file a petition in bankruptcy under any
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
law of the United States of America, any foreign country or any domestic or
foreign state or political subdivision for the relief of debtors now or
hereafter in effect or such a petition shall be filed against Maker or Guarantor
(and shall not be dismissed within 60 days); or Maker or Guarantor shall make an
assignment for the benefit of their respective creditors or consent to the
appointment of a receiver of the whole or any substantial part of their
respective property or fail generally to, or admit in writing their inability
to, pay their debts as they become due;
3.4 Maker or Guarantor shall fail to comply with any of the covenants
or perform any of the obligations contained in this Promissory Note or the
Agreement;
3.5 Failure by Maker or Guarantor to (a) pay any indebtedness for
borrowed money of Maker or Guarantor (as the case may be) with a principal
amount in excess of
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$50,000 (or the equivalent amount in pounds sterling at the then current
exchange rate for U.S. dollars) or any interest or premium thereon, when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), or (b) observe or perform any of their respective covenants or
agreements under any note, mortgage or security agreement or other instrument
evidencing or securing such indebtedness for borrowed money; or
3.6 Termination, revocation or discontinuance, in whole or in part, of
any guaranty of this Promissory Note or of the indebtedness evidenced hereby.
Upon the occurrence of an Event of Default, Payee may, at Payee's
option, declare the unpaid Principal Amount of this Promissory Note, and any
accrued interest thereon, immediately due and payable. In addition, Payee may
exercise any and all rights and remedies available to it under this Promissory
Note, and under any applicable law, including, without limitation, the Uniform
Commercial Code.
4. Collection Costs. Maker shall pay all costs of collection, including
reasonable attorneys' fees and expenses, incurred by Payee in collecting on or
enforcing this Promissory Note.
5. Guarantor. For value received, Guarantor, as primary obligor, hereby
unconditionally guarantees the payment when due by Maker of any sums due to
Payee under this Promissory Note. Upon the occurrence of an Event of Default,
Guarantor shall immediately pay to Payee any sums due to Payee under this
Promissory Note. In no event shall the validity of this guaranty or the
covenants and obligations of Guarantor or Maker be in any way terminated,
affected or impaired by the dissolution of Guarantor or Maker, or by the
rejection of such obligations under any bankruptcy, insolvency or similar laws,
now or hereafter enacted. If any Event of Default shall have occurred and be
continuing, Payee may, in its sole discretion, proceed first and directly
against the Guarantor under this Promissory Note, without proceeding first or
concurrently against the Maker or any other guarantor, and without exhausting
any other remedies it may have against the Maker or otherwise.
6. No Offset. The obligations of Maker and Guarantor under this Promissory
Note are absolute and unconditional, subject to no condition precedent
whatsoever and are subject to no off-set, claim or counterclaim, deduction,
defense of any kind or character or other diminution of value by reason of any
claim or defense Maker or Guarantor may have against Payee now or in the future.
All payments by Maker and Guarantor hereunder shall be free and clear of and
without deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority. If any such obligation is
imposed upon the Maker or Guarantor, other than with respect to taxes based upon
Payee's net income, the Maker or Guarantor, as applicable, will pay to Payee, on
the date on which such amount is due and payable hereunder, such additional
amount in U.S.
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dollars as shall be necessary to enable Payee to receive the same net amount
which Payee would have received on such due date had no such obligation been
imposed upon Maker or Guarantor.
7. Priority of Senior Promissory Note. Until all sums due to Payee under
this Promissory Note are paid in full, Maker shall not incur any unsecured
indebtedness for borrowed money that ranks senior in priority to the obligations
under this Promissory Note.
8. Notices. Any notice, request, instruction or other document to be given
hereunder shall be in writing and shall be deemed to have been given, (i) when
received if given in person, (ii) on the date of facsimile transmission if sent
by transmission (provided that a copy of such transmission is simultaneously
deposited in the manner provided in clause (iii) below) or (iii) five business
days after being deposited in the mail, certified or registered, postage
prepaid:
If to Payee, addressed as follows:
Information Management Associates, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Instructions:
Bank Name: People's Bank
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Bank ABA: ▇▇▇▇▇▇▇▇▇
Account Name: Information Management Associates, Inc.
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Account # : 048-▇▇▇▇▇▇▇
with copies to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
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▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Maker or Guarantor, addressed as follows:
AIT (USA), Inc.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
AIT Group plc
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 44-0-1491-416763
and to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Simey
Arlbee House
Grey ▇▇▇▇▇▇ ▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: 44-2920-388-222
or to such other individual or address as Maker, Guarantor or
Payee may designate for itself by notice given as herein provided.
9. Miscellaneous.
9.1 Successors and Assigns. All rights of Payee and Maker under this
Promissory Note shall inure to the benefit of their respective successors,
assigns, and legal representatives and this Promissory Note and all the
provisions hereof shall be binding upon Payee, Maker and Guarantor and their
respective successors, assigns, and legal representatives and all other persons
or entities claiming under or through them. The terms "Maker" and "Guarantor",
when used in this Promissory Note, shall include all
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of their respective successors, assigns, and legal representatives. The term
"Payee", when used in this Promissory Note, shall include Payee's successors,
assigns, and legal representatives. Neither Maker nor Guarantor may assign or
transfer any of their rights and obligations under this Promissory Note without
the prior written consent of Payee. Payee may assign or transfer this Promissory
Note, in whole or in part, to any person, without the prior written consent of
Maker.
9.2 Time is of the Essence. Time is of the essence with regard to the
performance of the obligations of Maker under this Promissory Note.
9.3 Waivers. Maker and Guarantor hereby expressly waive, to the fullest
extent permitted by applicable law, diligence presentment, demand, protest
notice of presentment, notice of protest, notice of dishonor of the debt
represented by this Promissory Note and any other notice of any kind whatsoever
and all exemption in connection with delivery, acceptance, performance, default
or enforcement of or under this Promissory Note. No renewal or extension of this
Promissory Note, no release or surrender of any guaranty of this Promissory
Note, no release of any person, primarily or secondarily liable on this
Promissory Note (including the Maker or Guarantor), no delay in the enforcement
of payment of this Promissory Note or any guaranty of this Promissory Note, and
no delay or omission in exercising any right or power under this Promissory Note
or any guaranty of this Promissory Note shall affect the liability of the Maker
or Guarantor.
9.4 Amendments. Neither this Promissory Note nor any provision hereof may be
waived, amended or discharged orally, but may be waived, amended or discharged
only by an agreement in writing signed by the party against whom enforcement of
any waiver, amendment or discharge is sought.
9.5 Terms of Agreement. The terms and conditions of the Agreement are, by
this reference, incorporated in, and made an integral part of, this Promissory
Note as if such terms and conditions were set forth in full in this Promissory
Note.
9.6 Governing Law. This Promissory Note shall be governed by and construed
in accordance with the substantive laws of the State of New York regardless of
any New York principles of choice or conflict of laws that would otherwise
provide for the application of the substantive laws of another jurisdiction.
9.7 Jurisdiction. Each of Maker and Guarantor hereby irrevocably submits to
and accepts, with respect to any legal or equitable action or proceeding arising
under or in connection with this Promissory Note, the exclusive jurisdiction of
(i) the state courts of the State of New York in New York City or (ii) at
Payee's election in its sole discretion, the United States Bankruptcy Court for
the District of Connecticut. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Each of Maker and Guarantor irrevocably consents to service of
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process by certified or registered mail, first class postage prepaid, return
receipt requested, or by any other method provided by applicable law. Maker and
Guarantor hereby irrevocably and unconditionally waive, to the fullest extent
they may legally and effectively do so, any objection which they may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Promissory Note in any court referred to in this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court. Nothing in this Promissory Note
will affect the right of any party to this Promissory Note to serve process in
any other manner permitted by law.
9.8 Headings. The descriptive headings of the Sections of this Promissory
Note are for convenience only and do not constitute a part of this Promissory
Note.
9.9 Severability. If any provision of this Promissory Note shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Promissory Note, and this Promissory Note shall be carried out as if any such
illegal, invalid or unenforceable provision were not contained herein.
9.10 Countersignatures. This Promissory Note may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
[Signature Page Follow]
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IN WITNESS WHEREOF, this Promissory Note has been duly executed and
delivered by Maker and Guarantor on the date first above written.
MAKER:
AIT (USA), INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GUARANTOR:
AIT GROUP PLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇, Director
Address: The ▇▇▇▇▇ Centre
The Fairmile
▇▇▇▇▇▇-on-Thames
Oxon, RG9 GAB, U.K.
[Signature Page to Promissory Note]
