EXHIBIT 10.34 (a)
EXHIBIT A
AGREEMENT FOR THE SALE AND PURCHASE OF ASSETS
SECURED PROMISSORY NOTE
OF
IOMEGA (MALAYSIA) SDN.BHD.
$18,000,000.00 Milpitas, California Dated _______ ___, 199__
FOR VALUE RECEIVED, AND SUBJECT TO THE TERMS OF THIS
SECURED PROMISSORY NOTE (this "Note") AND CLOSING OF THE REAL
PROPERTY TRANSACTION MEMORIALIZED IN THE ATTACHED SALE AND
PURCHASE AGREEMENT DATED SEPTEMBER 13, 1996, IOMEGA (MALAYSIA)
SDN.BHD., with a principal place of business at Xxxx 00, Xxxxx
Xxxxx Xxxxxxxxxx Xxxx XX, 00000 Xxxxxx, Xxxxxxxx (the
"Company"), unconditionally promises to pay to the order of
QUANTUM STORAGE (MALAYSIA) SDN.BHD., a wholly owned Malaysian
subsidiary of Quantum Corporation, a Delaware corporation,
having its principal place of business at 000 XxXxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, together with its
successors and assigns, (the "Note Holder"), or at such other
place as the Note Holder may from time to time designate in
writing, in lawful money of the United States of America and
in immediately available funds, the principal sum of Eighteen
Million Dollars ($18,000,000) together with interest thereof
from September 12, 1996 on the unpaid balance of principal
from time to time outstanding at the rate of 8.5% per annum
until this note is paid in full according to the following
terms and conditions:
Principal and Interest Repayment. The outstanding
principal amount of $18,000,000 shall be due and payable in
installments at the Note Holder's principal office or such
other place as may be designated from time to time by the Note
Holder as follows:
(a) The first payment of $7,530,000 ($6,000,000)
plus one year interest on $18,000,000 @ 8.5% equaling
$1,530,000) shall be due on September 13, 1997.
(b) The second payment of $7,020,000 ($6,000,000
plus one year interest on $12,000,000 @ 8.5% equaling
$1,020,000) shall be due on September 13, 1998.
(c) A final payment of $6,510,000 ($6,000,000 plus
one year of interest on $6,000,000 @ 8.5% equaling $510,000)
shall be due by September 13, 1999.
The Company shall be allowed, at any time to prepay in
the amount(s) it desires without penalty. Prepayments shall
be applied first to fees and expenses, second to accrued
interest and last to principal.
The obligations of the Company under this Note are
secured by that charge referred to in the attached S&P
Agreement ("the Charge") by the Company in favor of the Note
Holder.
If any day on which a payment is due pursuant to the
terms of this Note is not a day on which banks in California
are generally open (a "Business Day"), such payment shall be
due on the next Business Day following.
Events of Default. The occurrence of any of the
following shall constitute an "Event of Default" under this
Note:
(a) The Company shall fail to pay when due or upon
maturity any principal, interest, fees or other amounts
payable under this Note or Iomega Corporation shall fail to
pay when due or upon maturity any principal, interest, fees or
other amounts payable under the Guaranty to be executed at
Pre-Closing.
(b) Any financial statement or certificate
furnished to Note Holder in connection with this Note or any
representation or warranty made by the Company or Iomega
Corporation hereunder or under the Charge, the Agreement for
the Sale and Purchase of Assets in Malaysia dated as of
September 13, 1996 (the "Purchase Agreement") among Company,
Note Holder, Quantum Corporation and Iomega Corporation
("Iomega"), or the Guaranty and together with this Note, the
Charge and the Purchase Agreement (the "Purchase Documents")
by Iomega in favor of Note Holder by the Company under the
Note shall prove to be false, incorrect or incomplete in any
material respect when furnished or made.
(c) Any default in the payment or performance of
any obligation, or any defined event of default, under the
terms of any contract or instrument, evidencing aggregate
obligations in excess of $5,000,000 (other than this Note or
the Guaranty) pursuant to which Iomega, the Company and
Iomega's direct or indirect subsidiaries has incurred any debt
for borrowed money and as a result of which maturity thereof
has been accelerated.
(d) The filing of a notice of judgment lien against
Iomega or the Company; or the recording of any abstract of
judgment against Iomega or the Company in any country in which
Iomega or the Company has an interest in real property; or the
service of a notice of levy and/or of a writ of attachment or
execution, or other like process, against the assets of Iomega
or the Company; or the entry of a judgment against Iomega or
the Company; and with respect to any of the foregoing, the
judgment in excess of $5,000,000 and has not been stayed or
bonded within thirty (30) days provided that as to a levy,
writ of attachment, execution or other like process.
(e) Either Iomega or the Company shall become
insolvent, or shall suffer or consent to or apply for the
appointment of a receiver, trustee, custodian or liquidator of
itself of any of its property, or shall generally fail to pay
its debts as they become due, or shall make a general
assignment for the benefit of creditors; Iomega or the Company
shall file a voluntary petition in bankruptcy, or seeking
reorganization, in order to effect a plan or other arrangement
with creditors or any other relief under the Bankruptcy Reform
Act, Title 11 of the United States Code, as amended or
recodified from time to time ("Bankruptcy Code"), or under any
state or federal or foreign law granting relief to debtors,
whether now or hereafter in effect; or any involuntary
petition or proceeding pursuant to said Bankruptcy Code or any
other applicable state or federal law relating to bankruptcy,
reorganization or other relief for debtors is filed or
commended against Iomega or the Company, or Iomega or the
Company shall file an answer admitting the jurisdiction of the
court and the material allegations of any involuntary
petition; or Iomega or the Company shall be adjudicated a
bankruptcy, or an order for relief shall be entered by any
court of competent jurisdiction under said Bankruptcy Code or
any other applicable state or federal or foreign law relating
to bankruptcy, reorganization or other relief for debtors.
(f) The dissolution or liquidation of Iomega or the
Company; or if any of their respective directors, stockholders
or members, shall take action seeking to affect the
dissolution or liquidation of Iomega or the Company.
The Company waives presentment and demand for payment,
protest or notice of protest, notice of dishonor, and notice
of nonpayment of this Note and all other notices or demands in
connection with the delivery, acceptance, performance, default
or enforcement of this Note. The Company hereby waives to the
full extent permitted by law, the right to plead any and all
statutes of limitations as a defense to any demands hereunder.
The Company further covenants and agrees as follows:
1. The Company agrees to pay the Note Holder all costs and
expenses incurred by such Note Holder, including without
limitation, reasonable attorneys' fees and expenses, and court
costs (including any costs of appeal) in enforcing and
collecting this Note.
2. The Company shall not and shall not permit any of its
Subsidiaries to, create, incur, or otherwise cause or suffer
to exist or become effective any consensual Lien(s) [except as
provided in Section 13 of the Charge (entitled "Leasing and
Possession"))], upon Xxxx 00, Xxxxx Xxxxx Xxxxxxxxxx Xxxx IV,
also known as P.T. 3217, held under Xxxxxxx Xxxxxxxx,
Xxxxxxxxx Xx. X-X (X) 0000, Daerah Barat Daya, Palau, Penang
(the "Property").
3. The Company shall not hypothecate or encumber its
interest in the Property or any interest therein or suffer or
permit the Property or any interest therein to be hypothecated
or encumbered by operation of law. [Except as provided in
Section 13 of the Charge (entitled "Leasing and Possession")],
the Company shall not assign, sell, convey, or otherwise
transfer or dispose of the Property or any interest therein.
The Company may lease the Property subject to exercise of the
Charge thereon. Such lease agreements must be prior approved
in writing, by the Note Holder which shall not refuse any
lease properly subject to the Charge.
4. The Company shall not consolidate or merge with or into
any other Person or entity, or permit any other Person or
entity to consolidate or merge with or into the Company, nor
shall the Company sell, lease, convey or otherwise dispose of
all or substantially all of its assets unless (i) the entity
formed by or surviving any such consolidation or merger, or to
which such sale, lease, conveyance or other sale shall have
been made (the "Surviving Entity"), is a corporation organized
and existing under the laws of the United States, any state
thereof, the District of Columbia, or Malaysia; (ii) the
Surviving Entity assumes all of the obligations of the Company
under this Note; (iii) immediately after giving effect to such
transaction, no Event of Default nor event that with the
passage of time or the giving of notice would lead to an Event
of Default, shall have occurred and be continuing; (iv)
immediately after giving effect to such transaction, the
Consolidated Tangible Net Worth of the Company or the
Surviving Entity, as the case may be, would be at least equal
to the Consolidated Tangible Net Worth of the Company
immediately prior to such transaction; and (v) such
consolidation or merger should not have a material adverse
effect on the Company's business or on the ability of Note
Holder to enforce any Charge.
This Note is the Secured Promissory Note referred to in,
and is executed and delivered in connection with the Charge.
The full amount of this Note is secured by the Charge. The
Company shall not, directly or indirectly, suffer or permit to
be created or to remain, and shall promptly discharge, any
lien on or in the Property or any equipment or property
maintained on such Property, or in any portion thereof, except
as permitted pursuant to the Charge. In addition, the Company
shall not suffer any other matter whereby an interest of the
Note Holder under the Charge in the Property or in any lien
pursuant to the Charge or any part of the foregoing might be
impaired, except as permitted pursuant to such Charge.
Upon the occurrence and during the continuance of any
Event of Default, Note Holder may, by written notice to the
Company, declare all outstanding amounts payable by Company
hereunder to be immediately due and payable without
presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived. Upon the occurrence
and during the continuance of any Event of Default described
in clauses (f) or (g) of the definition of "Events of
Default", immediately and without notice, all outstanding
amounts payable by Company hereunder shall automatically
become immediately due and payable, without presentment,
demand, protest or any other notice of any kind, all of which
are hereby expressly waived. In addition to the foregoing
remedies, upon the occurrence and during the continuance of
any Event of Default, Note Holder may exercise any other
right, power or remedy permitted to it by law, either by suit
in equity or by action at law, or both.
This Note shall be governed by, and construed, enforced
and interpreted in accordance with the laws of the State of
California, excluding conflict of laws principles that would
cause the application of laws of any other jurisdiction. If
any term or provision of this Note shall be held invalid,
illegal or unenforceable, the validity of all other terms and
provisions hereof shall in no way be affected thereby.
The provisions of this Note shall inure to the benefit of
and be binding on any successor to the Company and shall
extend to any assignee of Note Holder.
IN WITNESS WHEREOF, the Company has caused this Note to be
executed and issued as of the day and year first written
above.
IOMEGA (MALAYSIA) SDN.BHD.
By: ____________________________
