LOAN AGREEMENT
THIS LOAN AGREEMENT, made and entered into as of the 17th day of
November, 2000, by and between XXXXX XXXXXXXXX, XXXXX XXXXXXXXXXX, and XXXX
XXXXXXXXXXX , herein referred to collectively as "Lenders," and
XXXXXXXXXX.XXX, INC., a Utah corporation (herein "Craftclick").
RECITALS:
WHEREAS, Lenders are the principal shareholders in Tri-Tech Internet
Services, Inc., a California corporation, (herein "Tri-Tech"); and
WHEREAS, Tri-Tech and Craftclick have entered into a non-binding
Memorandum of Understanding (herein, the "Memorandum") whereunder Tri-Tech and
Craftclick have agreed to use their best efforts to enter into a definitive
Agreement and Plan of Reorganization for the merger of a Craftclick subsidiary
into Tri-Tech; and
WHEREAS, Craftclick has previously executed a Secured Promissory Note in
the principal sum of $150,000 in favor of Xxxxxxx X. and Xxxx Xxxxx (herein,
the "Xxxxx Note"), which note is secured by Craftclick's interest in those
Internet domain names with the uniform resource locater (URL") addresses
xxxx://xxx.xxx0xxxxxxxxx.xxx, xxxx://xxx.xxx0xxx.xxx and
xxxx://xxx.xxx0xxx.xxx, and all rights associated thereto; (the Xxxxx Note is
appended hereto as Exhibit "A"); and
WHEREAS, Craftclick has previously executed a Secured Promissory Note in
the principal sum of $80,000 in favor of Venture Catalyst Incorporated
(herein, the "VCAT Note"), which note is secured by Craftclick's interest in
those Internet domain names with the uniform resource locater ("URL") address
xxxx://xxx.xxxxx.xxx, and all rights associated thereto (the VCAT Note is
appended hereto as Exhibit "B"); and
WHEREAS, in order to ensure the uninterrupted continuation of the
operation of the Internet websites associated with the aforesaid URL's,
Lenders desires to retire the indebtedness evidenced by the Xxxxx Note and the
VCAT Note, subject to the terms and conditions described hereinbelow; and
WHEREAS, Craftclick, in order to ensure the uninterrupted continuation
of the operation of its websites, and in order to induce Lenders to loan it
the funds described hereinbelow, desires to grant unto Lenders a security
interest in and to all of its URLs, and all of the hardware, software and
intellectual property rights associated therewith, on the terms and conditions
described hereinbelow;
NOW, THEREFORE, in consideration of the foregoing premises, and of the
promises, representations and warranties herein contained, the parties hereto
stipulate and agree as follows:
1. Lenders' Commitment to Loan Funds.
1.1 Subject to the terms and conditions of this Agreement,
Lenders agrees to make available to Craftclick the sum of Five Hundred Thirty
Thousand Dollars ($530,000.00) to be applied as follows:
1.1.1 The sum of $154,825.77 in order to retire the
principal and accrued interest with respect to the Xxxxx Note
1.1.2 The sum of approximately $82,000.00 in order to
retire the principal and accrued interest with respect to the VCAT Note;
1.1.3 An additional sum of $293,174.23 to retire the
indebtedness to those persons or entities who claim an indebtedness from
Craftclick, initially listed in Exhibit C, attached hereto and incorporated
herein by this reference.
1.2 Promissory Note; Security. The funds advanced to Craftclick
pursuant to the aforesaid commitment shall be evidenced by Craftclick's
Secured Promissory Notes (herein, the "Notes") in the form annexed hereto as
Exhibit "D1," and "D2." The Notes shall bear interest at seven percent (7%)
per annum, with no interest payable until the earlier of (i) the date of the
Closing with respect to the Agreement and Plan of Reorganization or (ii) June
30, 2001, on which earlier date the Note shall be due and payable in full.
Craftclick shall have the right to prepay the principal and interest with
respect to the Notes at any time. The Notes shall each be secured by a
Security Agreement in form substantially identical to that contained in
Exhibit E, attached hereto.
1.2.1 If, as and when Lenders have disbursed funds from the
Special Account to retire indebtedness listed in Exhibit C aggregating more
than Fifty Thousand Dollars ($50,000.00), then at such time Craftclick shall
execute its promissory note in favor of Lenders in the principal sum of
$50,000.00. The sum promissory note or notes shall be on the same terms and
conditions as that described in Section 1.2, hereinabove.
2. Disbursement of Funds. Lenders shall disburse the funds committed
in Section 1, hereinabove, as follows:
2.1 Lenders and Craftclick shall establish a Craftclick bank
account styled "Xxxxxxxxxx.xxx, Special Account." The Special Account shall
have two signatories, one designated by Lenders and one designated by
Craftclick. Lenders shall disburse funds sufficient to retire the outstanding
principal and interest with respect to the Xxxxx Note on November 17, 2000, by
means of a wire transfer of the sum of $154,825.77. Lenders shall not be
required to complete any such wire transfer unless and until Lenders have
received adequate assurance that the Xxxxx Note has been marked "Paid in Full"
and that a release of the security interest in favor of the Holder of the
Xxxxx Note will be transferred to Lenders contemporaneous with the wife
transfer.
2.2 Lenders shall disburse funds from the Special Account
sufficient to retire the outstanding principal and interest with respect to
the VCAT Note prior to or on December 11, 2000, which date may be extended in
the event that the Holder of the VCAT Note extends the date that the VCAT Note
becomes due and payable;
2.3 Lenders shall be required to disburse funds with respect to
the Xxxxx Note and/or the VCAT Note only if, as and when all of the following
conditions precedent have been met to the full satisfaction of Lenders:
2.3.1 Craftclick shall have executed the Note, a security
agreement and financing statement and any other collateral documents or
instruments that Lenders may require of Craftclick reasonable and necessary in
order to fully secure their interests in the assets and rights securing their
interests;
2.3.2 The Holders of the Xxxxx Note, and the Holders of the
VCAT Note, respectively, shall have fully released their security interests in
the respective assets secured by the Note, and shall have remitted the Xxxxx
Note and the VCAT Note, marked "Paid in Full" to Lenders. The Holder of the
Xxxxx Note, and the Holder of the VCAT Note, respectively, shall execute
whatever documents Lenders deems reasonable and necessary in order to release
and hold Craftclick harmless with respect to any and all claims or
indebtedness in their favor.
The parties hereto stipulate and agree that the execution of this Agreement
does not constitute an unconditional commitment on the part of Lenders to loan
any funds to Craftclick or to retire any indebtedness on the part of
Craftclick, and no promise has been made by any person to make any loan to any
person. Only when all of the express conditions precedent contained herein
have been fulfilled in full to the satisfaction of Lenders shall Lenders be
require to disburse any funds pursuant to this Loan Agreement.
2.4 Lenders shall disburse funds to retire indebtedness to those
persons or entities now listed in Exhibit C, as and when Lenders have
determined that such indebtedness is due and payable, and that the payee
listed in Exhibit C shall have executed whatever release or waiver Lenders
deems appropriate. Any funds remaining from the $293,174.23 after the
settlement of indebtedness listed in Exhibit C shall be used to retire
additional liabilities of CraftClick and/or fund working capital needs of
CraftClick as determined by CraftClick's management.
3. Closing. The Closing of this Agreement shall occur no later than
November 17, 2000. If such Closing has not occurred prior to such date, this
Loan Agreement shall be null, void and of no effect.
4. Representations and Warranties of Craftclick. Craftclick hereby
represents and warrants unto Lenders as follows:
4.1 Organization; Power and Authority. CraftClick is a
corporation duly organized, validly existing and in good standing under the
laws of Utah, its jurisdiction of incorporation, and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the failure to be so qualified or in good standing could not, individually or
in the aggregate, reasonably be expected to have a material adverse effect.
CraftClick has the corporate power and authority to transact the business it
transacts and proposes to transact, to execute and deliver this Agreement and
to perform the provisions contained herein.
4.2 Authorization, etc. This Agreement has been duly
authorized by all necessary corporate action on the part of CraftClick, and
this Agreement constitutes, and upon execution and delivery thereof, the Note
and the Security Agreement will constitute a legal, valid and binding
obligation of CraftClick enforceable against CraftClick in accordance with its
terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
4.3 Compliance with Laws, Other Instruments, etc. The execution,
delivery and performance by CraftClick of this Agreement and the Note will not
(i) contravene, result in any breach of, or constitute a default under, or
result in the creation of any lien in respect of any property of CraftClick or
any agreement or instrument to which CraftClick is bound or by which
CraftClick or any of their respective properties may be bound or affected,
(ii) conflict with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any court, arbitrator
or Governmental Authority applicable to CraftClick or (iii) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to CraftClick.
4.4 Litigation; Observance of Agreements, Statutes and Orders.
(a) There are no actions, suits or proceedings pending or, to
the knowledge of CraftClick, threatened against or affecting CraftClick or any
property of CraftClick in any court or before any arbitrator of any kind or
before or by any governmental authority.
(b) CraftClick is not in default under any term of any agreement
or instrument to which it is a party or by which it is bound, or any order,
judgment, decree or ruling of any court, arbitrator or Governmental Authority
or in violation of any applicable law, ordinance, rule or regulation
(including without limitation Environmental Laws and ERISA) of any
governmental authority.
4.5 Taxes. CraftClick has filed all tax returns that are required to
have been filed in any jurisdiction, and has paid all taxes shown to be due
and payable on such returns and all other taxes and assessments levied upon it
or its properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become
delinquent.
4.6 Title to Property; Lease. CraftClick has good and sufficient
title to its properties, free and clear of liens and encumbrances.
4.7 Intellectual Property.
(a) Patents, Trademark, etc. No claim is pending or
threatened to the effect that any patents, patent applications, trademarks,
trademark applications, service marks, service xxxx applications, trade names,
copyrights, manufacturing processes, formulae, trade secrets or know how owned
or licensed by CraftClick, or which CraftClick otherwise has the right to use,
is invalid or unenforceable by CraftClick, and to the knowledge of CraftClick
there is no basis for any such claim (whether or not pending or threatened).
To the best of CraftClick's knowledge, all technical information developed by
and belonging to CraftClick which has not been patented has been kept
confidential.
(b) Proprietary Information of Third Parties. To the best of
CraftClick's knowledge, no third party has claimed or has reason to claim that
any person employed by or affiliated with CraftClick has (a) violated or may
be violating any of the terms or conditions of his employment, non-competition
or non-disclosure agreement with such third party, (b) disclosed or may be
disclosing or utilized or may be utilizing any trade secret or proprietary
information or documentation of such third party or (c) interfered or may be
interfering in the employment relationship between such third party and any of
its present or former employees. No third party has requested information
from CraftClick which suggests that such a claim might be contemplated. To
the best of CraftClick's knowledge, no person employed by or affiliated with
CraftClick has employed or proposes to employ any trade secret or any
information or documentation proprietary to any former employer, and to the
best of CraftClick's knowledge, no person employed by or affiliated with
CraftClick has violated any confidential relationship which such person may
have had with any third party, in connection with the development, manufacture
or sale of any service or proposed service of CraftClick, and CraftClick has
no reason to believe there will be any such employment or violation. To the
best of CraftClick's knowledge, none of the execution or delivery of this
Agreement, or the carrying on of the business of CraftClick as officers,
employees or agents by any officer, director or key employee of CraftClick, or
the conduct or proposed conduct of the business of CraftClick, will conflict
with or result in a breach of the terms, conditions or provisions of or
constitute a default under any contract, covenant or instrument under which
any such person is obligated.
5. Representations and Warranties of Lenders. Lenders hereby
represent and warrant to CraftClick as follows:
5.1 Authority. Lenders have full power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement is a binding and valid agreement and
obligation of Lenders in accordance with its terms, except as the same may be
limited by bankruptcy or other laws affecting creditors' rights and general
principles of equity. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not result in any
violation of or default under any indenture, mortgage, deed of trust or other
agreement to which Lenders, or any of them, is a party or by which Lenders are
otherwise bound.
5.2 Claims or Litigation. There are no claims, actions,
lawsuits, proceedings, governmental or otherwise, pending or threatened
against or affecting Lenders which would prevent or hinder the consummation of
the transactions contemplated hereby or impair Lenders' ability to carry out
the terms of this Agreement.
6. Deliveries at Closing.
6.1 Deliveries by CraftClick
(a) A duly executed copy of this Agreement.
(b) The duly executed Note (D-1);.
(c) The duly executed Security Agreement.
(d) The duly executed Financing Statement.
(c) A certificate of the President of CraftClick
certifying that CraftClick's Board of Directors have taken any necessary
corporate actions relating to authorization, execution and delivery of the
Note and this Agreement.
6.2 Deliveries By Lenders.
(a) A duly executed copy of this Agreement.
(b) A cashier's check representing the loaned funds.
6.3 Other Documents: The parties shall deliver such other
documents as are reasonably required to carry out the terms of this Agreement.
7. Covenants of CraftClick.
7.1 Financial and Business Information. CraftClick shall
provide to Lenders during all times that any Note is outstanding:
(a) Copies of monthly internal management reports,
including a monthly profit and loss statement, balance sheet and statement of
cash flow.
(b) Copies of quarterly (or semi-annual) internal
management financial statements, including a profit, loss statement, balance
sheet and statement of cash flow.
(c) Copies of financial reports, profit and loss
statements, balance sheet and cash flow statement prepared annually by the
firm's outside certified public accountants. These statements need not be
certified, but can be review statements.
(d) Copies of all federal and state income or franchise
tax returns prepared for CraftClick.
(e) Copies of any claims or legal proceedings, including
arbitration or government regulatory proceedings instituted or made against
CraftClick.
7.2 Inspection.
(a) Lenders shall have the right during any time that the
Note is outstanding to have their representative upon two (2) business days'
prior notice to CraftClick, visit the offices of CraftClick to discuss the
affairs, finances and accounts of CraftClick with CraftClick's officers and
with CraftClick's independent public accountants. Any examination shall be at
the expense of Lenders unless CraftClick is in default under the terms and
provisions of the Note.
(b) Lenders shall have the right during normal business
hours to visit the offices of CraftClick and question CraftClick's management
employees on the business and operation of CraftClick.
8. Miscellaneous
8.1 Notices. All notices and communications provided for
hereunder shall be in writing and sent by telecopy if the sender on the same
day sends a confirming copy of such notice by a recognized overnight delivery
service, charge prepaid, or registered or certified mail, return receipt
requested. Any such notices must be sent to the address as listed below or
such addresses that may be substituted by any party.
If to Lenders:
c/o Tri-Tech Internet Services, Inc.
000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 91`205
If to CraftClick:
XxxxxXxxxx.xxx, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxx Xxx Xxx, XX 00000
8.2 Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of the Note) whether so
expressed or not.
8.3 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render unenforceable such provision
in any other jurisdiction.
8.4 Construction. Each covenant herein contained shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to
action to be taken by any person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
8.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of
the parties hereto.
8.6 Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law
of the State of incorporation of CraftClick, excluding choice of law
principles of the law of such State that would require the application of the
laws of a jurisdiction other than such state.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
LENDERS:
/s/Xxxxx Xxxxxxxxx
____________________________________________
Xxxxx Xxxxxxxxx
/s/Xxxxx Xxxxxxxxxxx
___________________________________________
Xxxxx Xxxxxxxxxxx
/s/Xxxx Xxxxxxxxxxx
___________________________________________
Xxxx Xxxxxxxxxxx
XXXXXXXXXX.XXX, INC.
By:/s/Xxxxxx Xxxx
President
