AGREEMENT AMENDING PROMISSORY NOTE DATED (date) EXECUTED BY METASWARM CORPORATION, PAYABLE TO (name) AMONG (name) and METASwarm Corporation Executed (date)
Exhibit
4.4
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AGREEMENT
AMENDING PROMISSORY NOTE DATED (date) EXECUTED BY
METASWARM
CORPORATION, PAYABLE TO (name)
AMONG
(name)
and
METASwarm
Corporation
Executed
(date)
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THIS
AGREEMENT AMENDING PROMISSORY NOTE
is entered into on this xxx day
of
(month) (year) (this "Agreement"), by and among METASwarm Corporation., a Nevada
corporation ("Borrower"), and xxxx, ("Lender").
RECITALS
WHEREAS,
on or about the xxx day of
(month) (year), Borrower executed that certain Promissory Note payable to Lender
in the original principal amount of xxx dollars ($xxx.00) (Hereinafter the
"Existing Note"); and
WHEREAS,
In connection with execution
of the Existing Note, Borrower agreed to provide for Conversion of the Existing
Note into Preferred Shares of Stock of Borrower at Lender’s option or to pay the
note in full; and
WHEREAS,
in consideration of Lender's
agreement to waive certain conditions of the Existing Note, Borrower and Lender
have agreed to (i) convert the Existing Note into xxx shares of restricted
common stock of the Borrower; and
WHEREAS,
it is the intention of the
Borrower and the Lender that the terms and other provisions of this Agreement
supersede all terms and conditions of the Existing Note; and
WHEREAS,
it is the desire of the
Borrower and Lender to amend the Existing Note to allow immediate conversion
into restricted Common Stock of Borrower as satisfaction and payment in full
of
Existing Note.
AGREEMENT
NOW,
THEREFORE, for and in
consideration of the mutual covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt, and
adequacy of which are hereby acknowledged by all parties hereto, Borrower and
Lender agree to amend and restate the Existing Note provisions as set forth
hereinbelow.
1.
Acknowledgement of obligations under
Existing Note. Borrower hereby acknowledges and agrees that Lender funded to
Borrower the Principal Amount (as defined in the Existing Note and having the
same meaning when used herein) of the Existing Note, that Borrower actually
received the Principal Amount from Lender and that Borrower has not repaid
any
portion of the Principal Amount nor any installment of interest due thereon
to
Lender. Borrower further acknowledges and agrees that the Existing Note,
inclusive of the Principal Amount and all interest accrued thereon from the
date
of the execution thereof through the date hereof remains unpaid, constitutes
a
valid and existing debt obligation of Borrower, that Borrower has no defenses
to
its obligation to pay the Principal Amount and all interest accrued thereon
from
the date of the execution thereof through the date hereof and that Borrower
has
no right to any offsets or other deductions therefrom.
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2.
Upon execution of this Agreement by
Borrower and Lender, Borrower shall issue xxx shares of restricted Common Stock
of Borrower to Lender and the debt evidence by the Existing Note shall then
be
considered paid in full with no further recourse.
3. MISCELLANEOUS.
3.1
Entire Agreement. This
Agreement constitutes the complete agreement between the parties with respect
to
the subject matter hereof and thereof, supersedes all prior agreements,
commitments, understandings, or inducements (either oral or written, expressed
or implied) and may not be modified, altered, or amended except by a written
agreement signed by Lender and Borrower as applicable. Each party to this
Agreement acknowledges that no representations, inducements, or agreements,
oral
or otherwise, have been made by any party, or anyone acting on behalf of such
party, which are not embodied herein, and no other agreement, statement or
promise not contained in the Existing Note as amended by this Agreement shall
be
valid or binding. The parties hereto have had an opportunity to consult with
their respective attorneys concerning the meaning and the import of this
Agreement and each has read this Agreement, as signified by their signatures
below, and is executing the same for the purposes and consideration herein
expressed.
3.2
Notices. Any notice or other
communication required or permitted to be given hereunder shall be in writing
and shall be deemed to have been received (a) upon hand delivery (receipt
acknowledged) or facsimile (with transmission confirmation report) at the
address or number designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first business
day
following such delivery (if delivered on a business day after during normal
business hours where such notice is to be received); or (b) on the business
day
following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications shall be:
If
to LENDER:
(name)
(address)
(city,
state zip)
If
to BORROWER:
METASwarm
Corporation
000
X. Xxxx Xxx., #000
Xxxxxxxx,
XX 00000
Any
party may require any other party
to serve notices in accordance with this Section at a different address or
directed to another person for receipt of notices, if such party so designates
such other person or address in writing delivered to every other party in
accordance with this Paragraph.
3.3
Successors and Assigns. The
Existing Loan Agreement as amended by this Agreement shall be binding upon,
and
shall inure to the benefit of, Borrower, Lender and their respective successors
and permitted assigns, except as otherwise provided herein or therein. Borrower
shall not assign, transfer, hypothecate, or otherwise convey its rights,
benefits, obligations, or duties under the Existing Loan Agreement as amended
by
this Agreement without the prior written consent of Lender. Any such purported
assignment, transfer, hypothecation, or other conveyance by Borrower without
the
prior express written consent of Lender shall be void. The terms and provisions
of the Existing Loan Agreement as amended by this Agreement, and the other
documents and agreements executed in furtherance thereof are for the purpose
of
defining the relative rights and obligations of Borrower and Lender with respect
to the transactions contemplated hereby and thereby, and there shall be no
third
party beneficiaries of any of the terms and provisions of any of such agreements
or documents. Lender reserves the right at any time to create and sell in its
entirety or a participation in any portion of the Existing Loan Agreement as
amended by this Agreement and to sell, transfer or assign any or all of its
right, title or interest in and to the same, and Borrower consents to Lender's
sale of any participations in, at any time or times, the Existing Loan Agreement
as amended by this Agreement or of any portion thereof or interest therein,
including Lender's rights, title, interests, remedies, powers, or duties
thereunder, whether evidenced by a writing or not, and to the sale, assignment
and transfer of any or all of its right, title or interest in and to the
Existing Loan Agreement as amended by this Agreement.
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3.4
Presumption against Scrivener. No
provision of this Agreement shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party's having or being deemed to have structured,
drafted or dictated such provision.
3.5
Law Governing Agreement. This
Agreement is made and entered into and is to be at least partially performed
in
Xxxxx County, Nevada. It shall be interpreted, construed and enforced and its
construction and performance shall be governed by the laws of the State of
Nevada applicable to agreements made and to be performed entirely within such
State without regard to principles of conflicts of laws, except to the extent
that federal law may apply.
3.6.
Partial Invalidity. Each part of
this Agreement is intended to be separate. If any term, covenant, condition
or
provision hereof is illegal or invalid or unenforceable for any reason
whatsoever, such illegality, invalidity or unenforceability shall not affect
the
legality, validity or enforceability of the remaining parts of this Agreement
and all such remaining parts hereto shall not be impaired or invalidated in
any
way, but shall be legal, valid and enforceable and have full force and effect
as
if the illegal, invalid, unenforceable part has not been included.
3.7
Variations in Pronouns. Wherever
the context shall so require, all words herein in the male gender shall be
deemed to include the female or neuter gender and vice versa, all singular
words
shall include the plural, and all plural words shall include the singular.
All
pronouns and any variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require.
3.8.
Execution and Counterparts. This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed to be an original, and all of which
taken
together shall constitute but one and the same instrument. Delivery of an
executed counterpart of a signature page to this Agreement to any other Loan
Document by facsimile transmission shall be effective as delivery of a manually
executed counterpart thereof.
3.9
Headings. The headings used in this
Agreement are for administrative purposes only and do not constitute substantive
matter to be considered in construing the terms and shall not affect the
interpretation of this Agreement. All references herein to Sections, Paragraphs,
subsections, and clauses, shall be deemed references to such parts of this
Agreement, unless the context shall otherwise require. A reference to an article
or section will mean an article or section in this Agreement, unless otherwise
explicitly set forth. The titles and headings in this Agreement are for
reference purposes only and will not in any manner limit the construction of
this Agreement. For the purposes of such construction, this Agreement will
be
considered as a whole. The terms "including" and "include" as used in this
Agreement will be deemed to include the phrase "without
limitation."
3.10
Attorney's Fees and Costs. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees, costs, and necessary disbursements from the offending party, in addition
to any other relief to which it may be entitled.
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3.11
Further Assurances. At any time
and from time to time after the date hereof, at the request of Lender, and
without further consideration, Borrower will execute and deliver such other
and
further instruments and documents, and take such other action as Lender may
reasonably deem necessary, convenient or desirable in order to more effectively
assist Lender in exercising its rights with respect hereto, and realizing the
benefits created by this Agreement.
IN
WITNESS WHEREOF, the undersigned
have duly executed this Agreement on this xxx day
of
(month) (year), as evidenced by their respective signatures below.
BORROWER:
METASWARM
CORPORATION
_________________________________
By: XXXXXX
XXXXXXX
Its: CEO
LENDER:
(name)
_________________________________
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