EXHIBIT 2
Published on May 13, 2009
Exhibit
2
PROMISSORY NOTE
(SECURED)
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$1,591,200
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May
4, 2009
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Montgomery
County, Maryland
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Promise
to Pay. For value
received, THE AHNS 2009
DESCENDANTS TRUST, an inter vivos trust created under the laws of the
State of Maryland, JENNY SONG
(or her successor(s)-in-interest), Trustee (the “Borrower”)
unconditionally and without set-off promises to pay to the order of the CHANG-HO AHN (the “Lender”),
the principal sum of One Million Five Hundred Ninety-One Thousand Two
Hundred & 00/100 Dollars ($1,591,200.00), with interest thereon from
the date of this Note until paid in full at the yearly rate of 3.46%, compounded
annually, payable as follows:
Payments
of interest and principal shall be made over a ten (10) year period with
consecutive annual payments being due beginning April 1, 2010, and continuing on
April 1st of each
year thereafter through April 1, 2019 (the “Maturity Date”). Each
annual payment shall be in the amount of One Hundred Ninety Thousand Nine
Hundred Forty-Two and 52/100 Dollars ($190,942.52).
All
payments received hereunder shall be applied first to collection expenses
incurred by the Lender, then to accrued but unpaid interest, and the balance, if
any, to principal. All payments hereunder may be payable by means of
cash, electronic bank transfer or a valid and good check made payable to Lender.
Notwithstanding any other provision of this Note to the contrary, the interest
rate provided herein and all calculations of interest under this Note shall be
made, and the provisions of this Note consistently construed and interpreted,
with the intention that this Note provide for adequate stated interest computed
at the “applicable federal rate” prescribed by Internal Revenue Code (“Code”)
Section 1274 and the Treasury Regulations promulgated thereunder so that the
indebtedness evidenced by this Note is not considered a “below market loan” for
purposes of Code Section 7872.
Prepayment. Borrower may
prepay all or any portion of the unpaid balance of this Note, provided that no
partial prepayment shall postpone the Maturity Date of this Note or alter the
amount of any remaining installments due under this Note.
Late
Fees. If any
installment or payment due under this Note is not received by the Lender when
due within seven (7) business days following the day on which such installment
or payment is due under this Note, then Borrower shall pay to Lender, in
addition to the amount of such delinquent installment, a late fee of five
percent (5%) of such delinquent installment. The Lender’s acceptance
of any late fee from Borrower shall not be construed as a waiver of Lender’s
right to insist on timely payments from Borrower in the future.
Costs. Borrower promises
to pay all costs incurred by Lender in the collection or enforcement of this
Note and any documents which are security for the obligation represented hereby,
whether or not suit is filed hereon, including but not limited to attorneys’
fees equal to fifteen percent (15%) of the total amount due and owing under this
Note if referred to an attorney for collection. Such costs of
collection shall include, but not be limited to, all reasonable costs and
expenses incurred in connection with the protection of or realization upon any
collateral securing this Note or for the enforcement of any guaranty
hereof.
Default. Borrower shall be
in default under this Note for all purposes on the occurrence of any of the
following: (a) failure to pay when due any installment under this Note, provided
Borrower shall have a period of ten (10) days from the date of its receipt of
notice from Lender advising of such nonpayment to cure same (provided that after
two such failures in any twelve month period notice of nonpayment shall not be
required and such ten (10) day grace period shall not apply); (b) the existence
of any event of default (following expiration of any applicable period allowed
for cure) under the terms of any of the Security Documents (as hereafter
defined); or (c) Borrower (i) admitting in writing insolvency or inability to
pay its debts as they mature, (ii) making a general assignment for the benefit
of creditors, (iii) commencing a case under or otherwise seeking to take
advantage of any bankruptcy, reorganization, insolvency, readjustment of debt,
dissolution or liquidation law, statute or proceeding, (iv) taking or omitting
to take any act indicating its consent to, approval of or acquiescence in any
such proceeding or the appointment of any receiver of or trustee for it or a
substantial part of its property, or suffering any such receivership,
trusteeship or proceeding to continue undismissed for a period of sixty (60)
days, or (v) becoming a debtor in any case under any chapter of the United
States Bankruptcy Code.
Remedies. Upon the
occurrence of any event of default, the Lender, at Lender’s sole option, may
accelerate the due date of and declare the unpaid balance of this Note to be
immediately due and payable without notice. All remedies
granted to Lender hereunder, the Security Documents or by law, shall be deemed
cumulative.
No
Waiver. The delay or
failure of Lender to exercise Lender’s option to accelerate this Note or any
other option or remedy granted to Lender hereunder, under any of the Security
Documents, or by law, in any one or more instances, or the acceptance by Lender
of partial payments or partial performance, shall not constitute a waiver of any
default by Borrower, and all such options and remedies shall remain continuously
in force. The authorities contained herein are deemed coupled with an
interest and are irrevocable by Borrower.
Liability
of Parties. Borrower and all
others who may become liable as makers, endorsers, guarantors or accommodation
parties for all or any part of this Note agree hereby to be jointly and
severally bound, and jointly and severally (a) waive any and all lack of
diligence or delays in the collection or enforcement hereof; (b) expressly
consent to the release or substitution of any of the collateral securing this
Note or any party liable hereunder; (c) expressly consent to any extension of
time for payment of this Note and any other indulgence or forbearance by Lender;
(d) waive presentation, demand of payment, dishonor or protest and notice of
same; and (e) WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION TO ENFORCE THE TERMS OF THIS
NOTE. Any such extension, release, substitution,
indulgence, or forbearance may be made without notice to any party and without
in any way affecting the personal liability of any party liable
hereon.
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Notwithstanding
the foregoing, no trustee or similar fiduciary of the trust designated as the
Borrower under this Note shall have any personal liability for this obligation,
it being intended that such trust alone as the Borrower shall be personally
liable under this Note.
Notice. Any notice to
Borrower where provided for in this Note shall be in writing and shall be deemed
to have been duly given (a) on the date of personal delivery, or (b) three (3)
business days after the date of deposit with the U.S. Postal Service, postage
prepaid, if sent by certified or registered mail, return receipt requested, or
(c) one business day after being sent, if sent by nationally recognized
overnight courier service, or (d) on the date of electronic transmission or
facsimile transmission; in each case, addressed as follows or to such other
person or address as either party shall designate by notice to the other party
in accordance herewith. Notwithstanding anything to the contrary, all
notices and demands for payment from Lender actually received in writing by
Borrower shall be considered to be effective upon the receipt thereof by
Borrower regardless of the procedure or method utilized to accomplish delivery
thereof to Borrower.
Purposes. Borrower
hereby represents, warrants and certifies to the Lender (and any subsequent
holder or taker of this Note) that the indebtedness evidenced by this Note is
being obtained exclusively for business or investment purposes (as such terms
are defined in Title Twelve of the Commercial Law Article of the Maryland
Annotated Code, as amended to date) and not for any family, household or
personal purpose, all proceeds of such indebtedness will be used
solely in connection with such business or investment purpose, and that no
portion of the proceeds of such indebtedness will be used for the purchase of
registered equity securities within the purview of Regulation “U” issued by the
Board of Governors of the Federal Reserve System.
Other
Documents. This
Note arises out of a sale of shares of publicly held stock under a transfer
agreement dated even date herewith between the Lender, as the seller, and the
Borrower, as the purchaser.
Security. This Note is
secured by a security agreement by Borrower as the debtor in favor of the Lender
as the secured party, which together with any amendments or modifications
thereto, as well as any other instrument or document hereafter executed
evidencing, securing and/or guarantying this Note, in whole or in part, are
sometimes collectively called the “Security Documents,” and is not subject to
any defense, claim, set off or discount of any kind
whatsoever. Reference is made to the Security Documents for a
description of any collateral and the rights of the Lender of this Note in
respect of such security.
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Choice of
Law; Forum Selection; Consent to Jurisdiction. This Note is executed and
delivered in, and shall be governed by, construed and interpreted in accordance
with the laws of, the State of Maryland (excluding the choice of law rules
thereof). Borrower hereby (a) agrees that all disputes and matters whatsoever
arising under, in connection with, or incident to this Note shall be litigated,
if at all, in and before a court located in the State of Maryland to the
exclusion of the courts of any other state or country, and (b) irrevocably
submits to the non-exclusive jurisdiction of any state or federal court sitting
in the State of Maryland in any action or proceeding arising out of or relating
to this Note, and hereby irrevocably waives any objection to the laying of venue
of any such action or proceeding in any such court and any claim that any such
action or proceeding has been brought in an inconvenient forum. A final judgment
in any such action or proceeding shall be conclusive and may be enforced in any
other jurisdiction by suit on the judgment or in any other manner provided by
law.
Miscellaneous. This Note shall
be binding upon the Borrower and the Borrower’s successors, and shall inure to
the benefit of the Lender, its successors and assigns and any other subsequent
taker or holder of this Note. Any modification to this Note shall be
in writing and signed by the Lender and Borrower. In the event that
any particular provision contained herein is determined to be invalid, whether
in whole or in part, the remaining provisions hereof otherwise valid and any
partially valid provision to the extent valid or enforceable shall continue in
full force and effect. Time is and shall be of the essence under this
Note. Any reference herein to the singular shall include the plural,
any reference to the masculine shall include the feminine gender, and any
reference to “it” shall include “his” or “hers” or vice versa, as the case may
be. If the original of this Note is lost, misplaced or
otherwise cannot be located by the Lender (or any subsequent holder or taker of
this Note), then a true and correct photocopy of the original of this Note shall
be sufficient evidence of this obligation, the indebtedness evidenced hereby and
terms of repayment to the fullest extent permitted by law.
IN
WITNESS WHEREOF, the undersigned, with full power to do so, has caused these
presents to be executed and sealed on the date first above written.
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BORROWER:
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THE
AHNS 2009 DESCENDANTS TRUST, u/a/d April 29, 2009
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| /s/ Jenny Song |
(SEAL)
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by:
JENNY SONG,
Trustee
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