Loans Payable and Convertible Subordinated Notes | 9 Months Ended |
Sep. 30, 2013 |
Loans Payable and Convertible Subordinated Notes | ' |
4. LOANS PAYABLE AND CONVERTIBLE SUBORDINATED NOTES |
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Venture Loan Payable |
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On December 21, 2010, we entered into a Venture Loan and Security Agreement (the “Loan Agreement”) with Compass Horizon Funding Company, LLC (the “Lender” or “Horizon”). The Loan Agreement provides for a total loan commitment of $5.0 million (“the Loan”) comprising of Loan A and Loan B, each in the amount of $2.5 million. Loan A was funded at closing on December 21, 2010 and matures 39 months after the date of advance. Loan B was funded on February 17, 2011 and also matures 39 months after the date of advance. We are obligated to pay interest per annum equal to the greater of (a) 12% or (b) 12% plus the difference between (i) the one month LIBOR Rate in effect on the date preceding the funding of such loan by five business days and (ii) .30%. We are required to make interest only payments for the first nine months of each loan and equal payments of principal over the final thirty months of each loan. We granted a security interest in all of our assets to the Lender. |
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In connection with Loan Agreements, we issued a seven year warrant to the Lender to purchase 140,000 shares of our common stock at an exercise price of $4.40. The relative fair value of the warrants was $0.2 million and is being recorded as interest expense over the term of the Loan. We estimated the fair value of the warrants using the Black-Scholes option pricing model using the following assumptions: |
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| | December 22, 2010 | | | | | | | | | |
Assumptions: | | | | | | | | | | | | |
Expected Life | | | 7 years | | | | | | | | | |
Expected volatility | | | 39.9 | % | | | | | | | | |
Dividends | | | None | | | | | | | | | |
Risk-free interest rate | | | 2.74 | % | | | | | | | | |
Also in connection with the Loan Agreement, we incurred $0.4 million of debt issue costs which were deferred and are being amortized to interest expense over the term of the loan. |
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On June 29, 2012, we amended the Loan Agreement (the “Amendment”) to change the Maturity Date to the earlier to occur of (i) August 1, 2014, or (ii) the date of acceleration of a Loan following an event of default or the date of prepayment of the Loan. In addition, the definition of Scheduled Payments was amended. The definition of Events of Default was expanded to include the failure to pay certain late fees and amendment fees, which were agreed upon among the parties. |
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In connection with the Amendment, we issued a warrant to Horizon representing the right to purchase 225,000 shares of our common stock at an exercise price of $0.01 per share (the “New Warrant”). In addition, we issued a restated and amended warrant to purchase 140,000 shares of the Company’s common stock at an exercise price of $0.26 (the “Amended Warrant”). The relative fair value of the New Warrant was $117,000. The difference between the fair value of the Amended Warrant immediately before and after the modification was $32,000. These amounts were recorded as a debt discount and are being recorded as interest expense over the remaining term of the loan. We estimated the fair value of the New and Amended Warrants using the Black-Scholes option pricing model using the following assumptions: |
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Assumptions: | | May 1, 2012 | | | | | | | | | |
Expected life | | | 7 years | | | | | | | | | |
Expected volatility | | | 88.2 | % | | | | | | | | |
Dividends | | | None | | | | | | | | | |
Risk-free interest rate | | | 1.35 | % | | | | | | | | |
Convertible Subordinated Notes |
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On May 24, 2011, we issued $12.5 million in aggregate principal amount of 7% Senior Subordinated Convertible Notes due June 1, 2016 (the “Notes”). The Notes were issued pursuant to an indenture (the “Indenture”), entered into between us and Wells Fargo Bank, National Association, as trustee, on May 24, 2011. In connection with the issuance of the Notes, we entered into a Waiver to our Venture Loan and Security Agreement with Horizon, dated May 18, 2011 pursuant to which Horizon provided its consent to the offering of the Notes and waived any restrictions in the Loan Agreement. |
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The Notes are senior subordinated unsecured obligations which will rank subordinate in right to payment to all of our existing and future senior secured indebtedness and bear interest at a rate of 7% per annum payable semi-annually in arrears on June 1 and December 1 of each year, commencing on December 1, 2011. The Notes mature on June 1, 2016, with an early repurchase date of June 15, 2014 at the option of the purchaser. The Notes are convertible into shares of our common stock in accordance with the terms of the Notes and the Indenture, at the initial conversion rate of 172.4138 shares of our common stock per $1,000 principal amount of Notes, equivalent to a conversion price of approximately $5.80 per share, subject to adjustment. If the Notes are converted into shares of our common stock prior to June 2, 2014, an interest make-whole payment will be due based on the conversion date up until June 2, 2014. Upon a non-stock change in control, additional shares of our common stock may need to be issued upon conversion, with a maximum additional shares of 25.606 per $1,000 in principal amount of Notes being issuable thereunder, for a total maximum of 198.0198 shares per $1,000 Note. Certain customary anti-dilution provisions included in the Indenture and/or the Notes could adjust the conversion rate. |
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The conversion feature within the Notes is not considered to be a beneficial conversion feature within the meaning of Accounting Standards Codification (“ASC”) 470, Debt, and therefore all of the gross proceeds from the Notes have been classified as long term debt. In connection with the issue of the Notes, we incurred approximately $1.3 million of debt issue costs which were deferred and are being amortized to interest expense over the term to the early repurchase date of June 15, 2014. |
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Also in connection with the issuance of the Notes, we entered into a Securities Purchase Agreement dated May 18, 2011 pursuant to which we agreed to prepare and file a registration statement with the Securities and Exchange Commission (the “SEC”) registering the resale of the Notes and the shares of common stock underlying the Notes. The registration statement was declared effective on August 10, 2011. |
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On June 1, 2012, we entered into an Exchange Agreement and a Forbearance Agreement with certain of the holders of our Notes. Pursuant to the terms of the Exchange Agreement, certain of the holders agreed to exchange the Notes for shares at an exchange rate of one share of our common stock for each $1.00 amount of the Notes exchanged. |
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Pursuant to the terms of the Forbearance Agreement, certain of the holders agreed to forbear from exercising their rights to require us to pay accrued interest on June 1, 2012 until the earlier of December 1, 2012 or our failure to meet certain milestones. In addition, pursuant to the terms of the Forbearance Agreement, we agreed to amend the conversion rate of the Notes as set forth in the Indenture to provide for an effective conversion rate of $1.00. |
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On January 25, 2013, we entered into an Exchange Agreement with IBC Funds, LLC (“IBC Funds”) in connection with Purchase Agreements between IBC Funds and certain Noteholders, to purchase up to $2.0 million of Notes through November 2013. Total purchases by IBC Funds in the nine months ended September 30, 2013 were $2.5 million. |
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At September 30, 2013 the Notes were convertible into 7,500,000 shares of our common stock. |
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Short-Term Convertible Notes |
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The total amount of Short-Term Convertible Notes Payable as of September 30, 2013 was $2.1 million, offset by discounts totalling $977,000. The total amount of Short-Term Convertible Notes Payable as of December 31, 2012 was $1.3 million, offset by discounts totalling $451,000. These Notes are comprised of the following: |
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| • | | From June 1, 2012 through January 17, 2013, we issued Convertible Promissory Notes to Asher Enterprises, Inc. (the “Asher Notes”) with a remaining principal amount of $213,000 and bearing 8% annual interest. The Asher Notes have maturity dates between September 13, 2013 and October 17, 2013 with repayment options from 100% to 135% of the principal amount beginning 90 days from each issuance date. The holder has the option to convert the principal and accrued interest into shares of our Company stock at a conversion price calculated as 70% of the average of the five lowest trading prices for our common stock during the 90 days prior to the conversion date. Proceeds from the Asher Notes were used to fund Company operations. | | | | | | | | | |
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| • | | On June 26, 2012, we issued a Promissory Note to JMJ Financial (the “JMJ Note”) of up to $1.1 million, which bears 0% interest if repaid at maturity. The JMJ Note has a maturity date of 180 days from the effective date of each funding. The principal amount due to JMJ Financial (“JMJ”) was prorated based on the consideration actually paid by JMJ, plus an approximate 10% Original Issue Discount (“OID”) that is prorated based on the consideration actually paid by JMJ as well as any other interest or fees. In addition, we will issue 100% warrant coverage for each amount funded under the JMJ Note. In addition, JMJ has the right, at any time at its election, to convert all or part of the outstanding and unpaid principal and any other fees, into shares of fully paid and non-assessable shares of our common stock. The conversion price is a variable calculation of 80% of the average of the three lowest closing prices for our common stock during the 20 days prior to the conversion date. We are only required to repay the amount funded and we are not required to repay any unfunded portion of the JMJ Note. | | | | | | | | | |
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| • | | The consideration received as through September 30, 2013 is $400,000, in exchange for a principal amount of $440,000 and issuance of 1,886,792 warrants (“the JMJ Warrants”) with an exercise price of $0.21, which may be reset if securities are issued for less than $0.21. For financial accounting purposes, the JMJ Warrants and conversion feature embedded in the JMJ Note were considered derivatives. The fair values of the JMJ Warrants and JMJ Note conversion features were estimated at inception and recorded as a debt discount and is being recorded to interest expense over the life of the JMJ Note. The derivatives will be valued at each reporting date and the change in estimated fair value will result in a gain or loss recorded in the statement of operations. The estimated grant date fair value of the JMJ Warrants and JMJ Note conversion were $198,113 and $187,195, respectively. We estimated the fair value of the JMJ Warrants and JMJ Note conversion features using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | June 26, 2012 | | | August 9, 2012 | | | | | |
Expected life | | | 4 years | | | | 4 years | | | | | |
Expected volatility | | | 95.4 | % | | | 97.7 | % | | | | |
Dividends | | | None | | | | None | | | | | |
Risk-free interest rate | | | 0.59 | % | | | 0.66 | % | | | | |
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| • | | The estimated fair value of the JMJ Warrants and JMJ Note conversion features was $1.2 million and $153,393, respectively, at September 30, 2013. We estimated the fair value of the JMJ Warrants and JMJ Note conversion feature at September 30, 2013 using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | September 30, 2013 | | | | | | | | | |
Expected life | | | 2.7 years | | | | | | | | | |
Expected volatility | | | 180.7 | % | | | | | | | | |
Dividends | | | None | | | | | | | | | |
Risk-free interest rate | | | 0.63 | % | | | | | | | | |
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| • | | On October 15, 2012, we entered into an Exchange Agreement (the “Exchange Agreement”) with Magna Group LLC (“Magna”), pursuant to which we agreed to issue to Magna convertible notes (the “Magna Notes”), in the aggregate principal amount of up to $4.6 million, in exchange for an equal amount of participation interests in certain secured promissory notes (the “Secured Notes”) issued by us to Horizon to be acquired by Magna. Pursuant to a participation purchase agreement dated as of October 15, 2012 (the “Magna Purchase Agreement”), Magna agreed to acquire, in tranches through on or around February 15, 2013, participation interests in the Secured Notes from Horizon up to the maximum amount of the principal outstanding, together with accrued interest and fees. The total issuances in 2012 were $1.0 million under the Exchange Agreement, pursuant to which we issued a Magna Note in exchange for a participation interest in a Secured Note. The Magna Notes bear interest at the rate of 6% per annum and mature 12 months after the date of issuance. The Magna Notes are convertible at the option of the holder at a conversion price equal to 75% of the average of the three lowest volume weighted average prices during the ten consecutive trading day period immediately prior to the date of conversion. The Magna Notes contain standard default provisions and provisions for adjustment of the conversion price in the event of subsequent equity sales. For financial accounting purposes, the conversion feature embedded in the Magna Notes were considered derivatives. The fair values of the Magna Notes conversion features were estimated at inception and recorded as a debt discount and is being recorded to interest expense over the life of the Magna Notes. The derivatives will be valued at each reporting date and the change in estimated fair value will result in a gain or loss recorded in the statement of operations. The estimated fair value of the Magna Notes conversion were $198,113. We estimated the fair value of the Magna Notes conversion feature using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | October 15, 2012 | | | November 8, 2012 | | | | | |
Expected life | | | 1 year | | | | 1 year | | | | | |
Expected volatility | | | 155.6 | % | | | 125.9 | % | | | | |
Dividends | | | None | | | | None | | | | | |
Risk-free interest rate | | | 0.19 | % | | | 0.2 | % | | | | |
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| • | | The estimated fair value of the Magna Notes conversion features was $35,000 at September 30, 2013. We estimated the fair value of the Magna Notes conversion feature at September 30, 2013 using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | September 30, 2013 | | | | | | | | | |
Expected life | | | 0.3 years | | | | | | | | | |
Expected volatility | | | 125 | % | | | | | | | | |
Dividends | | | None | | | | | | | | | |
Risk-free interest rate | | | 0.02 | % | | | | | | | | |
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| • | | On October 15, 2012, we entered into a Note Purchase Agreement (the “Hanover Purchase Agreement”) with Hanover Holding I, LLC (“Hanover”), pursuant to which Hanover agreed to purchase from us, and we agreed to sell to Hanover (subject to the terms and conditions set forth therein), an aggregate of $0.8 million of convertible promissory notes (the “Hanover Notes”). Subject to the terms and conditions set forth in the Hanover Purchase Agreement, the Hanover Notes will be sold in tranches of $100,000 through on or around February 15, 2013. The total issuances in 2012 were $0.3 million under the Hanover Purchase Agreement. The Hanover Notes bear interest at the rate of 12% per annum and mature eight months after issuance. The Hanover Notes are convertible at the option of the holder at a price equal to 75% of the average of the three lowest volume weighted average prices during the ten consecutive trading day period immediately prior to the date of conversion. The Hanover Notes contain standard default provisions and provisions for adjustment for the conversion price in the event of subsequent equity sales. For financial accounting purposes, the conversion feature embedded in the Hanover Notes were considered derivatives. The fair values of the Hanover Notes conversion features were estimated at inception and recorded as a debt discount and is being recorded to interest expense over the life of the Hanover Notes. The derivatives will be valued at each reporting date and the change in estimated fair value will result in a gain or loss recorded in the statement of operations. The estimated fair value of the Hanover Notes conversion were $204,498. We estimated the fair value of the Hanover Notes conversion feature using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | October 15, 2012 | | | November 8, 2012 | | | November 8, 2012 | |
Expected life | | | 0.7 years | | | | 0.7 years | | | | 0.7 years | |
Expected volatility | | | 133.3 | % | | | 138 | % | | | 163.9 | % |
Dividends | | | None | | | | None | | | | None | |
Risk-free interest rate | | | 0.15 | % | | | 0.15 | % | | | 0.1 | % |
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| • | | The estimated fair value of the Hanover Notes conversion features was $152,000 at September 30, 2013. We estimated the fair value of the Hanover Notes conversion feature at September 30, 2013 using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | September 30, 2013 | | | | | | | | | |
Expected life | | | 0.3 years | | | | | | | | | |
Expected volatility | | | 125 | % | | | | | | | | |
Dividends | | | None | | | | | | | | | |
Risk-free interest rate | | | 0.02 | % | | | | | | | | |
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| • | | On January 28, 2013, we entered into an Exchange Agreement (the “Exchange Agreement”) with IBC Funds LLC (“IBC”), pursuant to which we agreed to issue to IBC convertible notes (the “IBC Notes”), in the aggregate principal amount of up to $2.0 million, in exchange for an equal amount of participation interests in certain subordinated convertible debentures (the “Subordinated Notes”). Pursuant to various note purchase agreements dated as of January 25, 2013 (the “IBC Purchase Agreement”), IBC agreed to acquire, in tranches through on or around November 28, 2013, participation interests in the Subordinated Notes up to $2.0 million. The total issuances in 2013 were $2.0 million under the Exchange Agreement, pursuant to which we issued an IBC Note in exchange for a participation interest in a Subordinated Notes. The IBC Notes bear interest at the rate of 8% per annum and mature 9 months after the date of issuance. The IBC Notes are convertible at the option of the holder at a conversion price equal to 65% of the three lowest bid price during the ten consecutive trading day period immediately prior to the date of conversion. The IBC Notes contain standard default provisions and provisions for adjustment of the conversion price in the event of subsequent equity sales. We are in default under the Exchange Agreement on the conversion of our outstanding promissory note with IBC on April 23, 2013 as there are no available shares to complete IBC’s request to convert the debt into non restricted stock. For financial accounting purposes, the conversion features embedded in the IBC Notes were considered derivatives. The fair values of the IBC Notes conversion features were estimated at inception and recorded as a debt discount and is being recorded to interest expense over the life of the IBC Notes. The derivatives will be valued at each reporting date and the change in estimated fair value will result in a gain or loss recorded in the statement of operations. The estimated fair value of the IBC Notes conversion feature were $2.8 million. We estimated the fair value of the IBC Notes conversion feature using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | January 28, 2013 | | | February 8, 2013 | | | | | |
Expected life | | | 1 year | | | | 1 year | | | | | |
Expected volatility | | | 226.5 | % | | | 247.4 | % | | | | |
Dividends | | | None | | | | None | | | | | |
Risk-free interest rate | | | 0.16 | % | | | 0.14 | % | | | | |
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| • | | The estimated fair value of the IBC Notes conversion features was $182,000 at September 30, 2013. We estimated the fair value of the IBC Notes conversion feature at September 30, 2013 using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | September 30, 2013 | | | | | | | | | |
Expected life | | | 0.9 years | | | | | | | | | |
Expected volatility | | | 270.2 | % | | | | | | | | |
Dividends | | | None | | | | | | | | | |
Risk-free interest rate | | | 0.1 | % | | | | | | | | |
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| • | | On March 8, 2013, we entered into an Exchange Agreement (the “Exchange Agreement”) with Ironridge Global IV, Ltd. (“Ironridge”), pursuant to which we agreed to issue to Ironridge convertible notes (the “Ironridge Notes”), in the aggregate principal amount of up to $4.0 million, in exchange for an equal amount of participation interests in certain secured promissory notes (the “Secured Notes”) issued by us to Horizon to be acquired by Ironridge. Pursuant to a participation purchase agreement dated as of March 8, 2013 (the “Ironridge Purchase Agreement”), Ironridge agreed to acquire, in tranches through on or around June 1, 2014, participation interests in the Secured Notes from Horizon up to the maximum amount of the principal outstanding, together with accrued interest and fees. The total issuances in 2013 were $250,000 under the Exchange Agreement, pursuant to which we issued an Ironridge Note in exchange for a participation interest in a Secured Note. The Ironridge Notes do not bear interest and mature 12 months after the date of issuance. The Ironridge Notes are convertible at the option of the holder at a conversion price equal to 70% of the closing bid price on the trading day prior to the date of conversion, subject to certain conversion price limitations. For financial accounting purposes, the conversion feature embedded in the Ironridge Note was considered a derivative. The fair values of the Ironridge Notes conversion features were estimated at inception and recorded as a debt discount and is being recorded to interest expense over the life of the Ironridge Notes. The derivatives will be valued at each reporting date and the change in estimated fair value will result in a gain or loss recorded in the statement of operations. The estimated fair value of the Ironridge Notes conversion feature was $588,095. We estimated the fair value of the Ironridge Notes conversion feature using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | March 8, 2013 | | | | | | | | | |
Expected life | | | 1 year | | | | | | | | | |
Expected volatility | | | 249 | % | | | | | | | | |
Dividends | | | None | | | | | | | | | |
Risk-free interest rate | | | 0.15 | % | | | | | | | | |
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| • | | The estimated fair value of the Ironridge Notes conversion features was $1.8 million at September 30, 2013. We estimated the fair value of the Ironridge Notes conversion feature at September 30, 2013 using the Black-Scholes option pricing model using the following assumptions: | | | | | | | | | |
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Assumptions: | | September 30, 2013 | | | | | | | | | |
Expected life | | | 0.7 years | | | | | | | | | |
Expected volatility | | | 214.6 | % | | | | | | | | |
Dividends | | | None | | | | | | | | | |
Risk-free interest rate | | | 0.1 | % | | | | | | | | |
Mortgage Payable |
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Effective October 24, 2011, Cereplast Italia S.p.A (“Cereplast Italia”), our wholly owned subsidiary, completed its acquisition of an industrial plant and the real estate on which the industrial plant is located in Cannara, Italy. The Deed of Sale between Cereplast Italia and Societa Regionale Per Lo Sviluppo Economico Dell’Umbria — Sviluppumbria S.p.A, provided for an aggregate purchase price of approximately $6.5 million. The acquisition had previously been secured by a mortgage loan with Banca Monte Dei Paschi Di Sienna S.p.A for the principal of $4.5 million. |
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Effective October 25, 2012, Cereplast Italia renegotiated the terms of the acquisition of the industrial plant located in Cannara, Italy with Societa Regionale Per Lo Sviluppo Economico Dell’Umbria — Sviluppumbria S.p.A In connection with our renegotiation, the sale of the land was rescinded and Cereplast Italia retained the existing building, reducing the value of the purchase price to approximately $4.2 million. In exchange, Cereplast Italia rescinded the Mortgage loan with Banca Monte Dei Paschi Di Sienna S.p.A for the principal of $4.5 million in paying a limited rescission fee and cancelled all credit facility. Sviluppumbria S.p.A accepted to carry over a Note secured by the building, in amount of $3.2 million with an annual interest rate of 5.5%, until a new lender is secured. During that period of time Cereplast Italia agreed to negotiate the refurbishment of the building by a third party at no cost. Svilluppumprbia requested Cereplast Italia to represent a plan of development to occur within a longer period of time. |
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In July 2013, Cereplast Italia was unable to secure a new lender to repay the Note owed to Sviluppumbria S.p.A and is in default. However, during the refurbishment due diligence process, Cereplast Italia identified significant undisclosed environmental issues and requested additional time to clarify the situation. We are continuing an ongoing discussion to explore mutually acceptable alternatives with Sviluppumbria S.p.A. Potential resolutions include, but are not limited to, a revised payment plan with significant financial concessions. If we are unable to reach an agreement with Sviluppumbria S.p.A,,Cereplast Italia may abandon the property and pursue recovery of its full investment. |
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