Attached files
| file | filename |
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| 8-K - WLG INC | v188936_8k.htm |
| EX-99.3 - WLG INC | v188936_ex99-3.htm |
| EX-99.1 - WLG INC | v188936_ex99-1.htm |
THIS NOTE
HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL
(i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”) SHALL HAVE BECOME EFFECTIVE WITH RESPECT THERETO OR (ii) RECEIPT BY THE
COMPANY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE
EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER NOR IS IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS.
THIS LEGEND SHALL BE ENDORSED UPON ANY NOTE ISSUED IN EXCHANGE FOR THIS
NOTE.
WAKO
EXPRESS (HK) CO. LTD.
6%
Subordinated Promissory Note
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US$1,000,000
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As
of June 3, 2010
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FOR VALUE
RECEIVED, Wako Express (HK) Co.
Ltd., a Hong Kong corporation (the “Company”)
with its principal executive office at Units 1301-3 & 11-12 Tower 1 Ever
Gain Plaza, 88 Container Port Road, Kwai Chung, N.T. Hong Kong, SAR, promises to
pay to the order of Jumbo Glory Limited, a Hong Kong corporation or
its assigns (the “Payee”),
the principal amount of One
Million United States Dollars (US$1,000,000) (the “Principal
Amount”) in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts. Interest on this Note shall accrue on the Principal Amount outstanding
from time to time at a rate per annum computed in accordance with, and shall be
payable as provided in, Section 2 hereof.
Nothing in this paragraph shall be construed as the consent by the holder of
this Note to any action otherwise prohibited by the terms of this Note or as a
waiver of any such prohibition.
Each
payment by the Company pursuant to this Note shall be made without set-off or
counterclaim and in immediately available funds.
The
Company (i) waives presentment, demand, protest or notice of any kind in
connection with this Note and (ii) agrees, in the event of an Event of Default,
to pay to the holder of this Note, on demand, all costs and expenses (including
reasonable legal fees and expenses) incurred in connection with the enforcement
and collection of this Note.
1. Payment of Principal and
Interest.
A. Subject
to acceleration as provided herein, the Principal Amount of this Note shall be
due and payable on June 3, 2011 (the “Maturity
Date”).
B. All
payments due hereunder shall be made to the Payee in immediately available funds
acceptable to the Payee. If the Maturity Date falls on a date that is not a
Business Day (as hereinafter defined) then the Maturity Date shall be the next
Business Day. For purposes of this Note, “Business
Day” means any day that is not a Saturday, a Sunday or a day on which
banks are required or permitted to be closed in Hong Kong.
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2. Calculation of Interest;
Payment.
A. This
Note shall bear interest at the rate of (6%) percent per annum calculated on the
basis of a 360-day year for the actual number of days elapsed.
B. Interest
due and payable on this Note in the amount of $60,000, was prepaid by the
Company.
3. Prepayment. The
Company may prepay all or any portion of the outstanding Principal Amount at any
time. In the event of a prepayment of all of the remaining
outstanding Principal Amount, the Company shall be entitled to deduct from such
prepayment an amount equal to the prepaid interest for the period from the date
of such prepayment to the Maturity Date.
4. Events of
Default.
A.
The occurrence of either of the events listed in subsections (i) or (ii) below,
unless consented to or waived by Payee, shall constitute an “Event of
Default”:
(i) Non-Payment of
Obligations. The Company shall default in the payment of the principal or
accrued interest on this Note when and as the same shall become due and payable,
whether by acceleration or otherwise and such failure shall not be remedied
within thirty (30) calendar days of the applicable due date; or
(ii) Bankruptcy, Insolvency,
etc. The Company shall:
(a) generally
fail or be unable to pay, or admit in writing its inability to pay, its debts as
they become due;
(b) apply
for, consent to, or acquiesce in, the appointment of a trustee, receiver,
sequestrator or other custodian for the Company or any of its property, or make
a general assignment for the benefit of creditors;
(c)
in the absence of such application, consent or acquiesce in, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator or other custodian
for the Company or for any part of its property, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within thirty (30)
days;
(d) permit
or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy, insolvency or
comparable law, or any dissolution, winding up or liquidation proceeding, in
respect of the Company, and, if such case or proceeding is not commenced by the
Company or converted to a voluntary case, such case or proceeding shall be
consented to or acquiesced in by the Company or shall result in the entry of an
order for relief or shall remain for sixty (60) days undismissed;
or
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(e) take
any corporate action authorizing, or in furtherance of, any of the
foregoing;
B. Action if Bankruptcy,
Insolvency, etc. If any Event of Default described in clauses (ii)(a) through (d)
of Section 4A shall occur, the remaining outstanding Principal Amount of
this Note and all other obligations hereunder shall automatically be and become
immediately due and payable, without notice or demand.
C. Action if Other Event of
Default. If any Event of Default (other than any Event of Default
described in clauses
(ii)(a) through (d) of Section 4A) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Payee may, upon notice to the
Company, declare all or any portion of the remaining outstanding Principal
Amount of this Note and any or all other obligations hereunder to be due and
payable, whereupon the full unpaid Principal Amount (or any portion thereof so
demanded), and any and all other such obligations which shall be so declared due
and payable shall be and become immediately due and payable, without further
notice, demand, or presentment.
D. Remedies. In case any
Event of Default shall occur and be continuing, Payee may proceed to protect and
enforce its rights by a proceeding seeking the specific performance of any
covenant or agreement contained in this Note or in aid of the exercise of any
power granted in this Note or may proceed to enforce the payment of this Note or
to enforce any other legal or equitable rights as Payee shall
determine.
5. Amendments and
Waivers.
A. The
provisions of this Note may from time to time be amended, modified or waived, if
such amendment, modification or waiver is in writing and consented to by the
Company and Payee.
B. No
failure or delay on the part of Payee in exercising any power or right under
this Note shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand
on the Company, in any case shall entitle it to any notice or demand in similar
or other circumstances. No waiver or approval by Payee shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
C. To
the extent that the Company, makes a payment or payments to Payee, and such
payment or payments or any part thereof are subsequently for any reason
invalidated, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not
occurred.
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D. After
any waiver, amendment or supplement under this section becomes effective, the
Company, shall mail to the holder of this Note a copy thereof.
6. Miscellaneous.
A. Parties in Interest.
All covenants, agreements and undertakings in this Note binding upon the Company
or Payee shall bind and inure to the benefit of the successors and permitted
assigns of the Company and Payee, respectively, whether so expressed or
not.
B. Governing
Law. This Note shall be governed by and construed solely and
exclusively in accordance with the internal laws of the State of New
York without regard to the conflicts of laws principles thereof. The
parties hereto hereby irrevocably agree that any suit or proceeding arising
directly and/or indirectly pursuant to or under this Note, shall be brought
solely and exclusively in a federal or state court located in the City of New
York. By their execution hereof, the parties hereby covenant and irrevocably
submit to the in
personam jurisdiction of the federal and state courts located in the City
of New York and agree that any process in any such action may be served
upon any of them personally, or by certified mail or registered mail upon them
or their agent, return receipt requested, with the same full force and effect as
if personally served upon them in New York. The parties hereto expressly and
irrevocably waive any claim that any such jurisdiction is not a convenient forum
for any such suit or proceeding and any defense or lack of in personam jurisdiction with
respect thereto. In the event of any such action or proceeding, the party
prevailing therein shall be entitled to payment from the other party hereto of
its reasonable counsel fees and disbursements.
C. Notices. All notices
and other communications from the Company to the Payee shall be mailed by first
class, registered or certified mail, postage prepaid, and/or a nationally
recognized overnight courier service to the address furnished to the Company, in
writing by the Payee.
D. Waiver of Jury Trial.
THE PAYEE AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE OR ANY
OTHER DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN CONNECTION HEREWITH, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF THE PAYEE OR THE COMPANY.
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IN WITNESS WHEREOF, this Note
has been executed and delivered on the date specified above by the duly
authorized representative of the Company.
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WAKO
EXPRESS (HK) CO. LTD.
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By:
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Name:
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Title:
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AGREED
AND ACCCEPTED:
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JUMBO
GLORY LIMITED
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By:
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Name:
Malcolm Wood
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Title:
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