Promissory Note - Ramp Corp. and Cherryblossom Ltd.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAW OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR
OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO A TRANSACTION THAT IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION UNDER THE SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAWS.
PROMISSORY NOTE
U.S. $1,147,288.76 As of December 1, 2004
For value received, the undersigned, Ramp Corporation, a Delaware
corporation (the "Maker"), promises to pay to the order of Cherryblossom Ltd.,
an Anguilla corporation (the "Holder"), the aggregate principal amount of ONE
MILLION ONE HUNDRED FORTY-SEVEN THOUSAND TWO HUNDRED EIGHTY-EIGHT DOLLARS AND
SEVENTY-SIX CENTS (US $1,147,288.76), without interest on the unpaid principal
amount of this Promissory Note (the "Note"). All payments by the Maker hereunder
shall be made in United States Dollars and in immediately available funds.
1. Maturity Date and Payment.
(a) The outstanding principal amount of this Note, plus all accrued and
unpaid financing fees under the , shall be due and payable by Maker on the
Maturity Date. For purposes of this Agreement, the term "Maturity Date" shall
mean the earliest to occur of any of the following events:
(i) forty-five (45) days following the date hereof (the "Initial
Term") or January 14, 2005; and
(ii) upon the occurrence of an Event of Default (as defined in
Section 4 hereof).
(b) The Maker may prepay all or a portion of the outstanding principal,
at any time and from time to time, prior to the Maturity Date without premium or
penalty. Each prepayment shall be applied first to the payment of all fees
accrued hereunder on the date of any prepayment, and the balance of any such
prepayment shall be applied to the principal amount hereof.
2. Holder's Representations and Warranties. As of the date of this
Note, the Holder represents and warrants to the Maker that: (a) it is an
"accredited investor" as defined under Rule 501(a) of Regulation D promulgated
under the Securities Act, (b) it is not a "U.S. person", as defined under Rule
902(o) of Regulation S of the Securities Act and is not acquiring the Note for
the account or benefit of any U.S. person, (c) the Holder is acquiring the Note
in an "offshore transaction", as defined in Rule 902(i) of Regulation S, (d) the
Note was not offered to the Holder in the United States and, at the time of
execution of this Note and the time of any offer to the Holder hereunder, the
Holder was physically located outside of the United States, and (e) the Note has
been sold pursuant to Regulation S under the Securities Act.
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3. Events of Default. The occurrence at any time of any one or more of
the following events shall constitute an "Event of Default" under this Note: (a)
the Maker's failure to pay any principal, interest or other amount if and when
due under this Note and such breach shall continue uncured for five (5)
consecutive days; (b) failure of the Maker to perform any of its agreements and
obligations under this Note or any other agreement entered into by and between
the Holder and the Maker, or a material breach of any of the Maker's
representations and warranties or other obligations under this Note, or any
other agreement entered into by and between the Holder and the Maker, and such
failure to perform or material breach shall continue uncured for a period of ten
(10) business days after notice from the Holder; (c) a material breach of any of
the Maker's covenants under this Note, or any other agreement entered into by
and between the Holder and the Maker, and such breach shall continue uncured for
a period of ten (10) business days after notice from the Holder of such breach;
(d) the dissolution, liquidation or termination of the legal existence of the
Maker; (e) the appointment of a receiver, trustee or similar judicial officer or
agent to take charge of or liquidate any property of assets of the Maker, or
action by any court to take jurisdiction of all or substantially all of the
property or assets of the Maker; and (f) the commencement of any proceeding
under any provision of the Bankruptcy Code of the United States, as now in
existence or hereafter amended, or of any other proceeding under any federal or
state law, now existing or hereafter in effect, relating to bankruptcy,
reorganization, insolvency, liquidation or otherwise, for the relief of debtors
or readjustment of indebtedness, by or against the Maker.
4. Remedies. Upon the occurrence of an Event of Default, subject to any
notice and cure periods as provided herein, the Holder shall have the immediate
right, at its sole discretion, and without further notice, demand, presentment,
notice of nonpayment or nonperformance, protest, notice of protest, notice of
intent to accelerate, notice of acceleration or any other notice, all of which
are hereby irrevocably and unconditionally waived by the Maker to declare the
entire unpaid principal balance, and all accrued but unpaid interest and costs
at once immediately due and payable (and upon such declaration, the same shall
be at once immediately due and payable) and may be collected forthwith, whether
or not there has been a prior demand for payment and regardless of the
stipulated Maturity Date.
5. Maximum Interest Rate. It is the intention of the Holder that the
interest on the Note that may be charged to, collected from or received from the
Maker shall not exceed the maximum rate permissible under applicable law.
Accordingly, anything in this Note to the contrary notwithstanding, in the event
any interest is charged to, collected from or received from the Maker by the
Holder pursuant hereto or thereto in excess of such maximum lawful rate, then
the excess of such payment over that maximum shall be applied to the reduction
of the outstanding principal balance of the Note (without any prepayment premium
or penalty), and any portion of such excess payment remaining after payment and
satisfaction in full of the Note shall be returned by the Holder to the Maker.
6. Miscellaneous.
(a) Governing Law; Jurisdiction. This Note shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York
without regard to its principles of conflicts of laws or choice of laws. The
Maker and the Holder unconditionally and irrevocably consent to the jurisdiction
of the federal and state courts located in the State of New York, County of New
York with respect to any suit, action or proceeding arising out of or relating
to this Note, and, by execution and delivery of this Note, the Maker and the
Holder hereby accept for respectively for themselves, and in respect of their
property, generally and unconditionally the personal jurisdiction of the
aforesaid courts. The Maker and the Holder hereby unconditionally and
irrevocably waive any objection including, without limitation, any objection to
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the laying of venue or based on the grounds of forum non conveniens which they
may now or hereafter have to the bringing of any such action or proceeding in
such courts. The Maker and the Holder hereby irrevocably consent to the service
of process on an agent of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid. Nothing herein shall affect the right of the Maker or the
Holder to serve process in any manner permitted by law or to commence legal
proceedings or otherwise proceed against the other party in any other
jurisdiction.
THE MAKER AND THE HOLDER HEREBY WAIVE ANY AND ALL RIGHTS THAT IT MAY
NOW OR HEREAFTER HAVE UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY STATE
OR TERRITORY, TO A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING EITHER DIRECTLY
OR INDIRECTLY IN ANY ACTION OR PROCEEDING BETWEEN THE MAKER AND THE HOLDER OR
THEIR SUCCESSORS AND PERMITTED ASSIGNS, OUT OF OR IN ANY WAY CONNECTED WITH THIS
NOTE.
(b) Waiver of Presentment and Notice. Subject to the terms and
conditions of this Note, the Maker hereby waives presentment for payment,
demand, notice of non-payment, nonperformance or dishonor, protest, notice of
protest, notice of intent to accelerate, and notice of acceleration of this
Note, and all other notices in connection with the delivery, acceptance,
performance, default, or enforcement of the terms of this Note and the Maker
hereby agrees that its liability under this Note shall be irrevocable and
unconditional and shall not be affected in any manner by any indulgence,
extension of time, renewal, waiver or modification granted or consented to by
the Holder. The Maker hereby consents to any and all extensions of time,
renewals, waivers or modifications that may be granted by the Holder in writing
with respect to the payment or other provisions of this Note. Failure by the
Holder to insist upon the strict performance by the Maker of any terms and
provisions herein shall not be deemed to be a waiver of any terms and provisions
herein, and the Holder shall retain the right thereafter to insist upon strict
performance by the Maker of any and all terms and provisions of this Note or any
document securing the repayment of this Note.
(c) Replacement. Upon receipt of a duly executed, notarized and
unsecured written statement from the Holder with respect to the loss, theft or
destruction of this Note (or any replacement hereof), and without requiring an
indemnity bond or other security, or, in the case of a mutilation of this Note,
upon surrender and cancellation of such Note, the Maker shall issue a new Note,
of like tenor and amount, in lieu of such lost, stolen, destroyed or mutilated
Note.
(d) Enforcement Expenses. The Maker agrees to pay all out-of-pocket
costs and expenses incurred by the Holder in connection with the enforcement of
this Note, including, without limitation, all reasonable attorneys' fees and
expenses.
(e) Assignment. Neither this Note nor any of the rights, interests or
obligations hereunder may be assigned, by operation of law or otherwise, in
whole or in part by the Maker to any person or entity, except with the consent
of the Holder.
(f) Notices. All notices and other communications required or permitted
to be given pursuant to this Note shall be in writing signed by the sender, and
shall be deemed duly given (i) on the date delivered if personally delivered,
(ii) on the date sent by telecopier with automatic confirmation by the
transmitting machine, (iii) on the business day after being sent by Federal
Express or another recognized overnight mail service for next day or next
business day delivery, or (iv) five business days after mailing, if mailed by
United States postage-prepaid certified or registered mail, return receipt
requested, in each case addressed to the Maker or the Holder at the following
respective addresses:
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if to the Maker to: Ramp Corporation
33 Maiden Lane
5th Floor
New York, New York 10038
Attention: President
Facsimile: (212) ______________
with a copy to: Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, NY 10174
Facsimile: (212) 704-6288
Attention: Martin Eric Weisberg, Esq.
if to the Holder to: Cherryblossom Ltd.
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Facsimile: (___) __-_____
with a copy to: Granot Strauss & Co.
28th Floor
7 Menachem Begin Street
Ramat Gan 52521
Israel
Attention: Richard Naimer, Esq.
Facsimile No.: _______________
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this paragraph.
(g) Severability. If any provision of this Note is found by a court of
competent jurisdiction to be invalid or unenforceable as written, then the
parties intend and desire that such provision be enforceable to the full extent
permitted by law, and that the invalidity or unenforceability of such provision
shall not affect the validity or enforceability of the remainder of this Note.
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(h) Headings. Article and section headings in this Note are
included herein for purposes of convenience of reference only and shall not
constitute a part of this Note for any other purpose.
RAMP CORPORATION
By: _______________________________
Name: Andrew Brown
Title: Chief Executive Officer
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