EX-4.7
LOAN AGREEMENT
LOAN AGREEMENT
LOAN AGREEMENT, dated as of June 12, 2002 by and between
Freestar Technologies, Inc., a Nevada corporation, with headquarters
located at 1140 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Company") and the persons named on Schedule A
(collectively, the "Lender").
WHEREAS:
A. The Company wishes to borrow and Lender is willing to lend
the sum of $60,000 for the general business purposes of the Company
("Loan");
B. In order to induce Lender to make the Loan, the Company has
agreed to provide certain security to guarantee the repayment of the
Loan;
C. The Company will derive significant value from the
transactions contemplated by this Agreement; and
D. In addition to the foregoing, in order to induce Lender to
make the Loan, the Company has agreed to make the representations,
warranties and covenants hereinafter set forth, and to accept the
other terms, conditions and provisions of this Agreement.
NOW THEREFORE, intending to be legally bound, all of the parties
agree as follows:
I. Definitions.
"Agreement" means this Loan Agreement, as amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in the City of New York are authorized
or required by law to close.
"Closing Bid Price" shall mean for any security as of any date,
the lowest closing bid price as reported by Bloomberg, L.P.
("Bloomberg") on the principal securities exchange or trading market
where such security is listed or traded or, if the foregoing does not
apply, the lowest closing bid price of such security in the over-the-
counter market on the electronic bulletin board, or, if no lowest
trading price is reported for such security by the electronic
bulletin board, then the average of the bid prices of any market
makers for such security as reported in the "pink sheets" by the
National Quotation Bureau, Inc.
"Closing Date" has the meaning set forth in Section 2.02.
"Commission" means the Securities and Exchange Commission or any
entity succeeding to all of its material functions.
"Common Stock" means the common stock, $0.001 par value per
share, of the Company that is traded over the National Association of
Securities Dealers OTC Electronic Bulletin Board under the symbol "FSTI.".
"Company" means Freestar Technologies, Inc., a Nevada
corporation, and its successors.
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes, or
other similar instruments issued by such Person, (iii) all
obligations of such Person as lessee which (x) are capitalized in
accordance with GAAP or (y) arise pursuant to sale-leaseback
transactions, (iv) all reimbursement obligations of such Person in
respect of letters of credit or other similar instruments, (v) all
Debt of others secured by a Lien on any asset of such Person, whether
or not such Debt is otherwise an obligation of such Person and (vi)
all Debt of others guaranteed by such Person.
"Default" means any event or condition which constitutes an
Event of Default or which with the giving of notice or lapse of time
or both would, unless cured or waived, become an Event of Default.
"Default Rate" means the highest of 16% per month or the
highest rate of interest permitted to be charged under the law of the
State of Nevada.
"Event of Default" has the meaning set forth in Article VI
hereof.
"GAAP" means generally accepted accounting principles.
"Interest Rate" shall mean 10% per month.
"Investment" means any investment in any Person, whether by
means of share purchase, partnership interest, capital contribution,
loan, time deposit or otherwise.
"Lien" means, any lien, mechanic's lien, materialmen's lien,
lease, easement, charge, encumbrance, mortgage, conditional sale
agreement, title retention agreement, agreement to sell or convey,
option, claim, title imperfection, encroachment or other survey
defect, pledge, restriction, security interest or other adverse
claim, whether arising by contract or under law or otherwise
(including, without limitation, any financing lease having
substantially the same economic effect as any of the foregoing, and
the filing of any financing statement under the Uniform Commercial
Code or comparable law of any jurisdiction in respect of any of the
foregoing).
"Loan" means the loan made by payment by Lender to the Company
pursuant to this Loan Agreement in the principal amount of $60,000
along with all accrued interest, costs and fees as provided in this
Loan Agreement and the Notes, as defined below.
"Material Adverse Change" means (a) a material impairment of the
ability of the Company to perform under this Loan Agreement and to
avoid any event of Default; or (b) a material adverse effect upon the
legality, validity, binding effect or enforceability against the
Company of this Loan Agreement
"Material Adverse Effect" means any material adverse effect on
the operations, results of operations, properties, assets or
condition (financial or otherwise) of the Company, or on the
transactions contemplated hereby or by the agreements or instruments
to be entered into in connection herewith.
"Maturity Date" shall mean the earlier of (a) sixty days from
the date of this Agreement; or (b) the closing of the transactions
contemplated in the Term Sheet as defined herein.
"Notes" shall mean the promissory notes of the Company,
delivered pursuant to Section 2.01 of this Agreement evidencing the
Loan in the forms annexed as Exhibit A.
"OTC Bulletin Board" means the National Association of
Securities Dealers OTC Electronic Bulletin Board.
"Person" means an individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint
stock company, government (or any agency or political subdivision
thereof) or other entity of any kind.
"Securities" means the Notes and Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means 1,000,000 shares of Common Stock to be
transferred to the Lender simultaneously upon the execution of this
Agreement.
"Taxes" means any federal, state or local taxes, penalties,
assessments or charges imposed by a governmental entity.
"Term Sheet" shall mean the Confidential Memorandum executed by
vFinance Investment Systems, Inc. and the Company, a copy of which is
annexed hereto as Exhibit B.
"Trading Day(s)" shall mean any Business Day on which the
automated quotation system or exchange on which the Common Stock is
then traded is open for trading for at least four (4) hours.
"Transaction Agreement(s)" means this Agreement, the Notes, the
Guaranty, the UCC-1 Financing Agreement and any other documents
executed in connection with the Loan.
II. Loan
2.01 Notes; Interest on Loan . The Loan shall be evidenced by
the Notes appropriately completed on behalf of the Company, dated the
Closing Date, and in the aggregate amount of $60,000 which evidences
the principal amount of the Loan . The Notes shall bear interest
from the Closing Date at the Interest Rate. The unpaid principal
balance and any accrued interest shall be due and payable on the
Maturity Date. Interest shall be calculated on the unpaid principal
balance of the Notes at the Interest Rate commencing on the date of
this Agreement until the Loan is paid in full in accordance with the
terms of this Agreement.
2.02 Closing Date. The "Closing Date" shall be the date of
this Agreement provided all conditions precedent to the Loan as set
forth in Article IV have been satisfied.
2.03 Prepayment of Loans. The Company shall have the right at
any time and from time to time to prepay the Loan prior to the
Maturity Date, in whole or in part, without penalty.
2.04 Mandatory Prepayments. Upon (i) a transfer of all or
substantially all of the assets of the Company to any Person in a
single transaction or series of related transactions, or (ii) a
consolidation, merger or amalgamation of the Company with or into
another Person in which the Company is not the surviving entity
(other than a merger which is effected solely to change the
jurisdiction of incorporation of the Company and results in a
reclassification, conversion or exchange of outstanding shares of
common stock solely into shares of common stock) (each of items (i)
and (ii) being referred to as a "Sale Event"), then, in each case,
the Company shall, pay to the Lender, its successors and or/assigns,
all outstanding principal and accrued interest due under the Notes.
III. Representation and Warranties.
3.01 Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of formation, with full power and
authority to own, lease, use and operate its properties and to carry
on its business as and where now owned, leased, used, operated and
conducted. The Company has no Subsidiaries. The Company is duly
qualified to conduct business as a foreign corporation and is in good
standing in every jurisdiction in which the nature of the business
conducted by it makes such qualification necessary, except where such
failure would not have a Material Adverse Effect.
3.02 Authorization and Execution.
(a) The Company has all requisite power and authority to
enter into and perform each Transaction Agreement and to
consummate the transactions contemplated hereby and thereby and
to issue the Notes in accordance with the terms hereof and
thereof.
(b) The execution, delivery and performance by the Company
of each Transaction Agreement and the issuance by the Company of
the Notes have been duly and validly authorized and no further
consent or authorization of the Company, its Board of Directors
or its shareholders as required.
(c) This Agreement has been duly executed and delivered by
the Company.
(d) This Agreement constitutes, and upon execution and
delivery thereof by the Company, each of the other Transaction
Agreements will constitute, a valid and binding agreement of the
Company, in each case enforceable against the Company in
accordance with its respective terms.
3.03 Shares. All of the Shares are, or upon issuance will
be duly authorized, validly issued, fully paid and non-assessable.
The Shares are not subject to preemptive rights or similar rights of
the stockholders of the Company or any liens or encumbrances imposed
through the actions or failure to act of the Company. As of the date
hereof, (i) there are no outstanding options, warrants, scrip, rights
to subscribe for, puts, calls, rights of first refusal, agreements,
understandings, claims or other commitments or rights of any
character whatsoever relating to, or securities or rights convertible
into or exchangeable for the Shares.
3.04 Governmental Authorization. The execution and delivery by
the Company of the Transaction Agreements does not and will not, the
issuance or delivery of the Shares does not and will not, and the
consummation of the transactions contemplated hereby and by the other
Transaction Agreements will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental
official except (a) such actions or filings that have been undertaken
or made prior to the date hereof and that will be in full force and
effect (or as to which all applicable waiting periods have expired)
on and as of the date hereof or which are not required to be filed on
or prior to the Closing Date, and (b) such actions or filings that,
if not obtained, would not result in a Material Adverse Effect.
3.05 Issuance of Shares. The Shares are duly and validly issued
and outstanding, fully paid and nonassessable, free and clear of any
Taxes, Liens and charges with respect to issuance and shall not be
subject to preemptive rights or similar rights of any other
stockholders of the Company. Each of the Securities will have been
issued in material compliance with all applicable U.S. federal and
state securities laws.
3.06 No Conflicts. The execution and delivery by the Company of
the Transaction Agreements to which it is a party did not and will
not, and the issuance of the Notes did not and will not and the
consummation of the transactions contemplated hereby and by the other
Transaction Agreements will not, contravene or constitute a default
under or violation of (i) any provision of applicable law or
regulation, (ii) the Company's corporate documents and by-laws, (iii)
any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or the Company or any of their
assets, or result in the creation or imposition of any Lien on any
asset of the Company. The Company is in compliance with and conforms
to all statutes, laws, ordinances, rules, regulations, orders,
restrictions and all other legal requirements of any domestic or
foreign government or any instrumentality thereof having jurisdiction
over the conduct of its businesses or the ownership of its
properties, except where such failure would not have a Material
Adverse Effect.
3.07 Financial Information. The Company has timely filed with
the Commission true and complete copies of its financial statements
and schedules included therein ("Financial Statements"), and such
Financial Statements and schedules do not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading. There have
been no Material Adverse Changes in the Company's business,
properties, results of operations, condition (financial or otherwise)
or prospects since the date of the Financial Statements that have not
been disclosed to the Lender in writing. The Financial Statements,
including the footnotes thereto, fairly present the financial
condition of the Company at the dates indicated and its results of
their operations and cash flows for the periods then ended and,
except as indicated therein, reflect all claims against and all Debts
and liabilities of the Company, fixed or contingent.
3.08 Litigation. There is no action, suit or proceeding pending
or, to the knowledge of the Company, threatened against the Company,
before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business,
condition (financial or otherwise), operations, performance,
properties or prospects of the Company or which challenges the
validity of any Transaction Agreements.
3.09 Taxes. All United States federal, state, county,
municipality local or foreign income tax returns and all other
material tax returns (including foreign tax returns) which are
required to be filed by or on behalf of the Company have been filed
and all material Taxes due pursuant to such returns or pursuant to
any assessment received by the Company have been paid, except those
being disputed in good faith and for which adequate reserves have
been established. The charges, accruals and reserves on the books of
the Company in respect of Taxes or other governmental charges have
been established in accordance with GAAP.
3.10 Investments, Joint Ventures. The Company does not have a
direct or indirect Investment in any Person, and the Company is not a
party to any partnership, management, shareholders' or joint venture
or similar agreement.
3.11 Not an Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
3.12 Full Disclosure. The information heretofore furnished by
the Company to the Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby does not, and all
such information hereafter furnished by the Company to the Lender
will not (in each case taken together and on the date as of which
such information is furnished), contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements contained therein, in the light of the
circumstances under which they are made, not misleading.
3.13 Absence of Any Undisclosed Liabilities or Capital Calls.
There are no liabilities of the Company of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or
otherwise, and there is no existing condition, situation or set of
circumstances which could reasonably be expected to result in such a
liability, other than (i) those liabilities provided for in the
Financial Statements and (ii) other undisclosed liabilities which,
individually or in the aggregate, would not have a Material Adverse
Effect.
3.14 Title to Properties. The Company has good and marketable
title to all its properties reflected on the Financial Statements,
free and clear of all Liens, other than Liens set forth on the
Financial Statements.
IV. Conditions of Lending
The obligation of Lender to make the Loans is subject to the
following conditions precedent:
4.01 Representations and Warranties. The representations and
warranties of the Company set forth in Article III of this Agreement
shall be true and correct as of the Closing Date.
4.02 No Default. The Company shall be in compliance with all
the terms and conditions set forth in this Agreement on its part to
be observed or performed, and no Default or Event of Default shall
have occurred and be continuing.
4.03 Litigation.
(a) There shall be no actions, suits or proceedings
(whether or not purportedly on behalf of the Company) pending
or, to the knowledge of the Company, threatened against or
affecting the Company at law or in equity or before or by any
sector of the government, governmental department, commission,
board, bureau, the Commission, agency or instrumentality,
domestic or foreign ("Actions"), which involve any of the
transactions contemplated by this Agreement or the Notes, or
which, if adversely determined against either the Company, would
result in any Material Adverse Change in the business,
operations, prospects, properties or assets or in the condition,
financial or otherwise, of the Company.
(b) The Company shall not be in default with respect to
any judgment, writ, injunction, decree, rule or regulation of
any court or any governmental entity, department, commission,
board, bureau, the Commission, agency or instrumentality,
domestic or foreign, which would have a Material Adverse Effect
on the condition (financial or otherwise) of the Company or the
Company.
4.04 Deliveries. The Company shall have delivered to Lender on
or before the Closing the following documents in form and substance
satisfactory to Lender:
(a) Notes numbered 1, 2, and 3 payable to the order
of Lender in the forms annexed as Exhibit A to this Agreement
duly completed and executed by the Company and dated as of the
Closing Date.
(b) Term Sheet in the form annexed as Exhibit B to
this Agreement duly executed and completed by the Company and
dated prior to or as of the Closing Date.
(c) The personal guarantees of ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇
("Guaranties"), each in the form annexed hereto as Exhibit C,
duly executed and completed as of the Closing Date.
(d) A certificate or certificates for the Shares in the
name of the Lender or Lender's designee as set forth on Schedule A.
(e) UCC-1 Financing Statement in the form acceptable
to the lender; and
(f) Corporate Resolution of the Company authorizing the
transactions contemplated by this Agreement, in the form annexed
hereto as Exhibit D.
V. Affirmative Covenants
The Company hereby agrees that, from and after the date hereof
for so long as the Notes remains outstanding and for the benefit of
the Lender:
5.01 Information. The Company will deliver to the Lender or
holder of the Notes any and all information reasonable requested by
the Lender.
5.02 Payment of Obligations. The Company will, pay and
discharge, at or before maturity, all its liabilities, except where
the same may be contested in good faith by appropriate proceedings
and will maintain appropriate reserves for the accrual of any of the same.
5.03 Maintenance of Property; Insurance. The Company will keep
all property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted. In addition,
the Company will maintain insurance in at least such amounts and
against such risks as it has insured against as of the Closing Date.
5.04 Maintenance of Existence. The Company will continue to
engage in business of the same general type as now conducted by it,
and will preserve, renew and keep in full force and effect its
corporate existence and its material rights, privileges and
franchises necessary or desirable in the normal conduct of business.
5.05 Compliance with Laws. The Company will comply, in all
material respects, with all federal, state, municipal, local or
foreign applicable laws, ordinances, rules, regulations, municipal
by-laws, codes and requirements of governmental authorities
(including, without limitation, environmental laws and ERISA and the
rules and regulations thereunder) except (i) where compliance
therewith is contested in good faith by appropriate proceedings or
(ii) where non-compliance therewith could not reasonably be expected,
in the aggregate, to have a material adverse effect on the business,
condition (financial or otherwise), operations, properties or
prospects of the Company.
5.06 Inspection of Property, Books and Records. The Company
will keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in
relation to its business and activities; and will permit, during
normal business hours, a representative of the Lender to visit and
inspect any of its properties, upon reasonable prior notice, to
examine and make abstracts from any of its books and records and to
discuss its affairs, finances and accounts with its executive
officers and independent public accountants (and by this provision
the Company authorizes its accountants to disclose and discuss with
the Lender the affairs, finances and accounts of the Company.
5.07 Investment Company Act. The Company will not be or become
an open-end investment trust, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the Investment Company Act of 1940, as amended.
5.08 Use of Proceeds. The proceeds from the Notes shall be used
for working capital purposes. None of the proceeds from the issuance
and sale of the Notes will be used directly or indirectly for the
purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any "margin stock" within the meaning of Regulation G of the
Board of Governors of the Federal Reserve System..
5.09 Piggy Back Rights. For a period of five (5) years from the
date hereof, the Lender shall have unlimited "piggy back"
registration rights for the Shares. The Company shall advise the
Investor or its transferee, by written notice at least 30 days prior
to the filing of any registration statement or post-effective
amendment thereto under the Act covering any securities of the
Company, for its own account or for the account of others (other than
a registration statement on Form S-4 or S-8 or any successor forms
thereto), and will, upon the request of the Lender, include in any
such post-effective amendment or registration statement, such
information as may be required to permit a public offering of, all or
any of the Registrable Securities. In any event, the Company shall
include the Shares in the form SB2, which is presently being prepared
by the Company and is scheduled to be filed with the Commission within
the next fourteen days. The Company shall supply prospectuses and
such other documents as the Lender may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Securities, use its reasonable efforts to register and qualify any of
the Registrable Securities for sale in such states as such Lender
designates, provided that the Company shall not be required to qualify
as a foreign corporation or a dealer in securities or execute a
general consent to service of process in any jurisdiction in any
action, and do any and all other acts and things which may be
reasonably necessary or desirable to enable such Lender to consummate
the public sale or other disposition of the Registrable Securities (it
being understood that the Company, in its sole discretion, has the
right not to request acceleration of effectiveness of any such
registration statement). The Company shall use its best efforts to
cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the holders of Registrable Securities
requested to be included in the registration statement.
Notwithstanding the foregoing, if the managing underwriter or
underwriters of such offering advises the Company or the holders of
Registrable Securities that the total amount of securities which they
intend to include in such offering is such as to materially and
adversely affect the success of such offering, then the amount of
securities to be offered for the accounts of holders of Registrable
Securities shall be eliminated, reduced, or limited to the extent
necessary to reduce the total amount of securities to be included in
such offering to the amount, if any, recommended by such managing
underwriter or underwriters and shall be subject to (i) the number of
securities which the Company proposes to offer and sell for its own
account in such offering and (ii) any other registration rights
granted to other shareholders or securityholders of the Company that
are in effect on the date thereof (any such reduction or limitation in
the total amount of Registrable Securities to be included in such
offering to be borne by the holders of Registrable Securities proposed
to be included therein pro rata). The Lender shall not be obligated
to agree to any underwriter lockup if it chooses not to exercise its
registration rights.
The Company will use its best efforts to maintain such
registration statement or post-effective amendment current under the
Act for as long as Lender holds Registrable Securities.
VI. Events of Default.
6.01 Events of Default. If one or more of the following events
(each an "Event of Default") shall have occurred and be continuing:
(a) failure by the Company to pay or prepay when due, all
or any part of the interest or principal when due on the Notes
(whether by virtue of the agreements specified in this Agreement
or the Notes);
(b) failure on the part of the Company to observe or
perform in any material respect any covenant of this Agreement;
(c) trading in the Common Stock shall have been suspended
by the Commission or by the OTC Bulletin Board (except for any
suspension of trading of limited duration solely to permit
dissemination of material information regarding the Company and
except if, at the time there is any suspension on the OTC
Bulletin Board, the Common Stock is then listed and approved for
trading on either the Nasdaq Stock Market's SmallCap Market or
the Nasdaq Stock Market's National Market or a stock exchange
within ten (10) trading days thereof);
(d) the Company shall have its Common Stock delisted from
the OTC Bulletin Board for at least ten (10) consecutive Trading
Days and is unable to obtain a listing on either the Nasdaq Stock
Market's SmallCap Market or the Nasdaq Stock Market's National
Market or a stock exchange within such ten (10) trading days
thereof;
(e) the Company has commenced a voluntary case or other
proceeding seeking liquidation, winding-up, reorganization or
other relief with respect to itself or its debts under any
bankruptcy, insolvency, moratorium or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of them
or any substantial part of their property, or has consented to
any such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding
commenced against them, or has made a general assignment for the
benefit of creditors, or has failed generally to pay their debts
as they become due, or has taken any corporate action to
authorize any of the foregoing;
(f) an involuntary case or other proceeding has been
commenced against the Company seeking liquidation, winding-up,
reorganization or other relief with respect to them or their
debts under any bankruptcy, insolvency, moratorium or other
similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of their property, and
such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 90 days, or an order for
relief has been entered against the Company under the federal
bankruptcy laws as now or hereafter in effect;
(g) default in any provision (including payment) of any
agreement governing the terms of any Debt of the Company in
excess of $50,000, which has not been cured within any applicable
period of grace associated therewith;
(h) judgments or orders for the payment of money which in
the aggregate at any one time exceed $50,000 and are not covered
by insurance have been rendered against the Company by a court of
competent jurisdiction and such judgments or orders shall
continue unsatisfied and unstayed for a period of 90 days;
then, and in each and every such occurrence, the Lender may, with
respect to an Event of Default, and the Lender may declare the Notes
to be, and the entire amount of principal and interest as provided in
the Notes and this Agreement shall thereon become immediately due and
payable; and provided further, if any Event of Default has occurred
and is continuing, and irrespective of whether the Notes have been
declared immediately due and payable hereunder, the Lender or an any
holder of the Notes may proceed to protect and enforce the rights of
the Lender or such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any
agreement contained herein or in the Notes, or for an injunction
against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or
otherwise, and provided further, that the Lender or any holder of the
Notes may exercise immediately and without notice to the Company any
and all rights and remedies provided under this Agreement and the
Guaranties and the laws governing the enforcement and foreclosure of
the UCC-1 Financing Statement.
6.02 Powers and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Lender or holder of the Notes is
intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other
appropriate right or remedy. Every power and remedy given by this
Agreement, the Notes, the Guaranties and the UCC-1 Financing Statement
or by law may be exercised from time to time, and as often as shall be
deemed expedient, by the Lender or the holder of the Notes.
6.03 Rights of Lender or holder of the Notes Upon Events of
Default. In the case of happening of any Event of Default then, at
any time thereafter, Lender may, without notice, or demand upon the
Company take any of the following actions, at the same or different
times: (i) declare the Notes and all fees and the other sums accrued
under this Agreement and the Notes to be immediately due and payable,
both as to principal and interest, without presentment, demand,
protest or other notice of any kind, all of which are expressly
waived, anything contained in this Agreement or the Notes to the
contrary notwithstanding, (ii) exercise all rights and remedies
available under the Guaranties, (iii) foreclose and enforce the UCC-1
Financing Statement; and (iv) otherwise exercise any and all rights
and remedies afforded to Lender by this Agreement and the Transaction
Documents or at law or in equity.
VII. Miscellaneous.
7.01 Notices. Except as expressly provided in this Agreement,
any notice, request, demand, statement, authorization or consent made
hereunder shall be in writing and shall be hand delivered or sent by
express mail service, return receipt requested, and also sent by fax,
and shall be deemed given when received at the following addresses:
If to Lender:
Set forth on Schedule A Attached.
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Company:
Freestar Technologies, Inc.
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Attention: ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Guarantors:
Mr. ▇▇▇▇ ▇▇▇▇
Calle Fantino Falco #24
Edificio ▇. ▇▇▇▇
Ensanche Naco, Santo ▇▇▇▇▇▇▇
Dominican Republic
▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Calle Fantino Falco #24
Edificio ▇. ▇▇▇▇
Ensanche Naco, Santo ▇▇▇▇▇▇▇
Dominican Republic
7.02 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Notes shall
survive the making of the Loan by Lender, and shall continue in full
force and effect so long as the Notes are outstanding or any amount
due thereunder or under this Agreement remains unpaid.
7.03 Applicable Law. The Transaction Documents shall be
construed in accordance with and governed by the laws of the State of
Nevada applicable to agreements executed in and to be performed wholly
within such State.
7.04 Waiver by Lender. Neither any failure nor any delay on the
part of Lender in exercising any right, power or privilege under this
Agreement or the Notes, shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further
exercise of any other right, power or privilege.
7.05 Modification of Agreement. No modification, amendment or
waiver of any provision of this Agreement or the Notes, nor consent to
any departure by the Company or Lender therefrom shall in any event be
effective unless the same shall be in writing and signed by Lender or
Company, as applicable, and the party against whom enforcement of such
modification, amendment or waiver is sought, and expressly refers to
this Agreement and states that it is a modification, amendment or
waiver, as the case may be, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given. No notice or demand to the Company in any case shall entitle
the Company to any other or further notice or demand in the same,
similar or other circumstances.
7.06 Severability. In case any one or more of the provisions
contained in any of the Transaction Documents including but not
limited to this Agreement or the Notes, should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby.
7.07 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of
which, taken together, shall constitute but one instrument.
7.08 Late Charges and Costs. In order to defray expenses
incurred by Lender in processing delinquent payments, in the event
that any payment due, whether by acceleration or otherwise, on the
Notes or otherwise pursuant to this Agreement, is not paid within 5
days of the date such payment is due, the Company shall pay the Lender
a fee equal to 4% of the amount which is overdue, and in the event it
becomes necessary for the Lender to institute enforcement proceedings
with regard to the Notes, this Agreement, the Guaranties or the UCC-1
Financing Statement, or to enforce the rights and remedies provided
under all of the aforesaid documents, the Company shall pay all costs
and disbursements in connection therewith including but not limited to
attorneys fees, and the fees of any experts or consultants who may be
retained.
7.09 Default Interest. In addition to the late charge under
section 7.08 of this Agreement upon the occurrence of an Event of
Default, the Company shall, regardless of whether Lender has exercised
any of the remedies provided for in this Agreement or the Notes, pay
interest, to the extent permitted by law on the outstanding principal
at the Default Rate.
7.10 Usury Savings Clause. All payment obligations arising under
this Agreement or the Notes, are subject to the express condition that
at no time shall the Company be obligated or required to pay interest
at a rate which could subject Lender to either civil or criminal
liability as a result of being in excess of the maximum rate which the
Company is permitted by law to contract or agree to pay. If by the
terms of this Agreement or the Notes, the Company is at any time
required or obligated to pay interest at a rate in excess of such
maximum rate, the applicable rate of interest shall be deemed to be
immediately reduced to such maximum rate, and interest thus payable
shall be computed as such maximum rate, and the portion of all prior
interest payments in excess of such maximum rate shall be applied and
shall be deemed to have been payments in reduction of principal.
7.11 Waiver of Jury Trial. LENDER AND COMPANY HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION, SUIT OR COUNTERCLAIM, ARISING IN CONNECTION WITH, OUT OF OR
OTHERWISE RELATING TO THIS AGREEMENT, THE NOTES, THE GUARANTIES, THE
UCC-1 FINANCING STATEMENTS OR ANY OF THE OTHER TRANSACTION DOCUMENTS.
COMPANY SHALL NOT RAISE ANY COUNTERCLAIM IN ANY PROCEEDING BROUGHT BY
LENDER TO ENFORCE THE PROVISIONS OF THIS AGREEMENT, THE NOTES, THE
GUARANTIES, THE UCC-1 FINANCING STATEMENT OR ANY OF THE OTHER
TRANSACTION DOCUMENTS.
7.12 Consent to Jurisdiction; Waiver of Immunities.
(a) Company and Lender hereby irrevocably submit to the
jurisdiction of any New York State or federal court sitting in
New York County in any action or proceeding arising out of or
relating to this Agreement, the Notes, the Guaranties, the UCC-1
Financing Statement or any of the Transaction Documents and
irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in such New York State or
Federal court. The Company, and Lender hereby irrevocably waive
the defense of an inconvenient forum or venue to the maintenance
of such action or proceeding. Service of process may be made on
the Company, or Lender by mailing, certified mail, return
receipt requested, or Fedex, or delivering a copy of such
process to Company or Lender, as the case may be, at the
addresses set forth in Section 7.01 above and such service shall
be complete upon mailing or delivery of the process.
(b) Nothing in this section 7.12 shall affect the Company's
or Lender's right to serve legal process in any other manner
permitted by law.
7.13 Independent Counsel. The Company and Lender hereby
acknowledge that they have retained independent counsel of their
choice to review this Agreement and the accompanying documentation.
IN WITNESS WHEREOF, the Lender and the Company have executed this
Agreement, all as of the day and year first above written.
LENDER:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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COMPANY:
Freestar Technologies
By: /s/ ▇▇▇▇ ▇▇▇▇
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EXHIBIT A
FORM OF PROMISSORY NOTE
No. _____
$20,000 New York, New York
June 12, 2002
FOR VALUE RECEIVED, Freestar Technologies, Inc., a Nevada
Corporation with a principal place of business at 1140 Avenue of the
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JOINTLY AND SEVERALLY PROMISE to pay to the Order of ________________
("Payee"), at _______________________________________ or at such
other place as Payee may direct from time to time, in lawful money of
the United States of America, in immediately available funds, the
principal amount of Twenty Thousand Dollars ($20,000), and interest
from the date hereof, in like money, on the dates and pursuant to
rate provided in the Loan Agreement dated of even date herewith by
and among the Makers, Payee and other individuals set forth on
Schedule A therein ("Agreement") and upon default, on demand from
time to time, as provided in sections 7.08 and 7.09 of the Agreement.
This Promissory Note is subject in all respects to the Agreement,
including, without limitation, the Usury Savings Clause in section 7.10.
This Promissory Note is referred to in the Agreement, and is
subject to acceleration of maturity as set forth in the Agreement.
This Promissory Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements executed and to be performed wholly within such state and
any applicable laws of the United States of America.
FREESTAR TECHNOLOGIES, INC.
Authorized Officer
EXHIBIT C
UNCONDITIONAL GUARANTEE
THIS UNCONDITIONAL GUARANTY ("Guaranty"), dated as of June 12,
2002, is made by ▇▇▇▇ ▇▇▇▇, with an address at Calle Fantino Falco
#24, Edificio ▇. ▇▇▇▇, Ensanche Naco, Santo ▇▇▇▇▇▇▇, Dominican
Republic ("Guarantor") in favor of the in favor of persons named on
Schedule 1 (together with its permitted assigns and successors, the
"Holders").
Reference is made to that certain Loan Agreement dated of even
date herewith between Freestar Technologies, a Nevada corporation
("Obligor") and the Holders ("Agreement"), Promissory Notes in the
aggregate amount of $60,000 of even date herewith between Obligor and
Holders ("Notes") and a UCC-1 Financing Statement ("UCC-1") executed
in connection with the Agreement and the Notes. The Agreement,
Notes, UCC-1 and any and all documents executed in connection
therewith are sometimes referred to herein as "Transaction Documents."
Unless otherwise defined herein, all capitalized terms, when
used herein shall have the same meaning as is defined in the
Agreement. In order to induce the Holders to provide an aggregate of
$60,000 to the Obligor, as evidenced by the Transaction Documents,
the undersigned Guarantor has agreed to execute and deliver this
Guaranty to the Holders. The Guarantor is the president and a
director of the Obligor.
The Guarantor does hereby irrevocably and unconditionally
guaranty to the Holders, to the extent hereinafter set forth, the
full and timely performance by the Obligor of each of the Obligor's
covenants, agreements, and obligations under the Transaction
Documents (collectively, the "Obligations").
This is an absolute, irrevocable and unconditional guaranty of
payment and performance and not merely of collection and the
Guarantor shall be liable with the Obligor. In furtherance hereof,
the Guarantor does hereby acknowledge and confirm that the
Obligations are intended to and will confer significant benefit upon
the Guarantor.
1. Notwithstanding any payment(s) made by the Guarantor
hereunder, but without prejudice to the Guarantor's rights as a
creditor of the Obligor, the Guarantor shall in no event be entitled
to be subrogated to any of the rights of the Holders against the
Obligor unless and until all Obligations shall have been paid in
full; and the Guarantor shall in no event seek any contribution or
reimbursement from the Obligor in respect of any payment(s) made by
or received in respect of the Guarantor hereunder, unless and until
all of the Obligations shall have been paid in full.
2. The Guarantor hereby acknowledges and agrees that the
validity of this Guaranty and the Guarantors' obligations hereunder
shall in no way be terminated, modified, affected, impaired or
diminished by reason of
(i) any failure by the Holders (or any of them) to insist in any
one or more instances upon strict performance or observance by
the Obligor of any of the terms, provisions or conditions of the
Transaction Documents,
(ii) any assertion or non-assertion by the Holders (or any of
them) against the Obligor of any of the rights or remedies
reserved to the Holders in the Transaction Documents,
(iii) any forbearance by the Holders (or any of them) from
exercising any of its rights or remedies as aforesaid,
(iv) any bankruptcy, insolvency, receivership, reorganization,
liquidation or other similar proceeding relating to the Obligor,
(v) any relief of the Obligor and/or the Guarantor from any of
its obligations under any of the Transaction Documents , by
operation of law, in equity or otherwise,
(vi) any amendment, modification, extension, renewal,
termination, compromise or waiver under or in respect of any of
the Transaction Documents, or
(vii) any transfer, assignment or negotiation of any of the
Transaction Documents or this Guaranty.
Except for any required demand in respect of payment hereunder, the
Guarantor hereby waives any and all notice, demand, presentment,
protest and other such privilege or formality, and all notice in
respect of the creation, renewal, extension or accrual of any
Obligations. The Guarantor represents and warrants to the Holders
that this Guaranty has been duly executed and delivered by the
Guarantor, constitutes the legal, valid and binding obligation of the
Guarantor, and is enforceable against the Guarantor in accordance
with its terms; the Guarantor has full capacity and power to execute
and deliver this Guaranty; and the execution and delivery by the
Guarantor of this Guaranty and the performance by the Guarantor of
his obligations hereunder, do not violate, or conflict with, any
agreement, instrument, note, judgment, order or decree binding on the
Guarantor or under any law, rule or regulation applicable to the
Guarantor, which violation or conflict would have a material and
adverse effect on the Guarantor's ability to perform his obligations
under this Guaranty.
3. This Guaranty shall inure to the benefit of the Holders and
their successors and assigns.
4. Subject to applicable statutes of limitations, no delay on
the part of any of the Holders in exercising any rights hereunder,
or any failure by any of the Holders to exercise any such rights,
shall operate as a waiver of any such rights for any purposes, it
being understood that, subject to applicable statutes of limitations,
the Holders may exercise any and all of his rights hereunder at any
time and from time to time pursuant to the terms hereof.
5. Except as otherwise provided herein, this Guaranty may not
be terminated, modified or amended except by a writing duly executed
by the Holders.
6. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Each of the
parties consents to the jurisdiction of the federal courts whose
districts encompass any part of the City of New York or the state
courts of the State of New York sitting in the City of New York in
connection with any dispute arising under this Agreement and hereby
waives, to the maximum extent permitted by law, any objection,
including any objection based on forum non coveniens, to the bringing
of any such proceeding in such jurisdictions.
7. In the event that the Holders shall, after default by the
Guarantor of any of his obligations hereunder, place this Guaranty in
the hands of any attorney for enforcement and/or collection, the
Guarantor shall pay to the Holders reasonable attorneys' fees
together with all other reasonable costs and expenses of enforcement
and collection.
8. This Guaranty may be executed in any number of counterparts,
each of whom shall be deemed an original but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned Guarantor, intending to be
legally bound hereby, has executed this Guaranty as of the date set
forth above.
/s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
ACCEPTED AND AGREED TO:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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SCHEDULE 1
Holders
Name Address Dollar Value of Note
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $20,000
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇,▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,▇▇▇
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