EXHIBIT 10.6
This Credit Agreement, dated December 20, 1999 is by and among PARTMINER,
INC., a New York corporation (the "Company") and the Company's subsidiaries
listed on Schedule 1 attached hereto (together with the Company, each
individually a "Borrower" and collectively the "Borrowers") and HAIC INC., a
Delaware corporation (the "Lender"). Unless otherwise indicated, all capitalized
terms are set forth in Section 8 hereof.
WHEREAS, the Borrowers have requested that the Lender provide a credit
facility for the purposes hereinafter set forth; and
WHEREAS, the Lender has agreed to make the credit facility available to the
Borrowers on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and agreements hereinafter
set forth, the parties hereto agree as follows:
SECTION 1. THE LOAN
1.1. The Facility. From time to time prior to January 31, 2001 and subject to
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the terms and conditions hereof, the Lender agrees to loan funds to the
Borrowers, jointly and severally, in an aggregate principal amount not to exceed
at any time outstanding the principal amount of Ten Million Dollars
($10,000,000) at a rate of interest equal to the Prime Rate; provided, however,
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the Lender shall not be obligated to make more than four Advances in any month;
and provided; further, however, that the total amount of Advances made during
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any of the months of December, 1999 or January or February, 2000 shall not
exceed $3,000,000 during any such month and the total amount of Advances made
during any month thereafter shall not exceed $2,000,000 during any such month.
1.2. Joint and Several Obligations. The obligations of the Borrowers hereunder
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are and shall be joint and several. Each Borrower hereby irrevocably appoints
the Company as its respective agent for purposes of making all requests for
Advances, and executing such documents and taking all other actions required or
permitted hereunder, and agrees that all communications by or to the Company and
all execution of documents and other actions taken
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by the Company in connection with this Agreement shall be binding on each
Borrower as fully as if such Borrower had made such requests, executed such
documents and/or taken such actions itself.
1.3 Promissory Note. The indebtedness of the Borrowers to the Lender will be
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evidenced by a Note executed by the Borrowers, jointly and severally, in favor
of the Lender. The outstanding principal balance of the Loan together with all
interest accrued thereon shall be due and payable in full on the earliest to
occur of (i) January 31, 2001, or (ii) the third business day after the closing
date of the Initial Public Offering (as hereinafter defined), or (iii) the third
business day after the closing date of the Refinancing (as hereinafter defined).
Notwithstanding the foregoing, the aggregate outstanding principal balance of
the loan and all interest accrued thereon shall be due and payable immediately
on acceleration of the loan in accordance with Section 7 hereof.
1.4. Effectiveness. The effectiveness of this Agreement shall be subject to the
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Lender's receipt of the following documents, each in form and substance
reasonably satisfactory to the Lender: (i) certified copies of appropriate
authorizing resolutions of the Board of Directors of each Borrower authorizing
such Borrower's execution and performance of this Agreement, the Note and the
Loan Documents, (ii) Uniform Commercial Code financing statement searches
against the Borrowers in such jurisdictions as the Lender shall reasonably
require, (iii) the Security Documents (as hereinafter defined) duly executed by
the Borrowers, and (iv) the Note duly executed by the Borrowers.
1.5 Advances. The Company on behalf of the Borrowers shall give the Lender
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prior written (which may be telecopied) notice of each requested Advance under
this Agreement by delivery of an Advance Request Form in the form of Exhibit A
hereto, certified by the President, any Vice President or the Chief Financial
Officer of the Company. The Advance Request Form shall specify the date, amount
and purpose of the Advance and shall contain the following information and
representations, which shall be required to be true and correct as of the date
delivered and as of the date of the requested Advance:
(i) the aggregate amount of the requested Advance;
(ii) the purpose of the requested Advance;
(iii) confirmation of the Borrower's compliance on the date of the request
for the Advance with the covenants in Sections 4 and 5 hereof;
(iv) certification that the representations and warranties set forth in
Section 3 hereof are true and correct in all material respects as of
the date of the Advance and no
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Event of Default or Default hereunder has occurred and is then
continuing or would occur as a result thereof; and
(v) certification that there have been no Material Adverse Effect since
the date of this Agreement.
Each of the representations and warranties set forth in subparagraphs
(iii), (iv), and (v) above shall be deemed to have been made by the Borrowers on
the date of each request for an Advance. Each of the Borrowers hereby
irrevocably authorizes and requests that the Company execute all Advance Request
Forms on its respective behalf, in each case with the same force and effect as
if such entity had executed such Advance Request Form itself.
1.6 Conditions. It shall be a condition to the Lender's obligation hereunder
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to make any Advance that the Lender receive a completed Advance Request Form and
that the representations set forth herein shall be true and correct as if made
on the date of such Advance (except for such representations and warranties as
expressly relate to a prior date), no Event of Default or Default shall have
occurred and be continuing on the date of such Advance, and there shall have
been no Material Adverse Effect since the date of this Agreement.
1.7 Optional Prepayments. The Borrowers may, at their option, at any time and
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from time to time, prepay all or any part of the outstanding principal balance
of the Loan, without penalty or premium, in multiples of $50,000, provided that
concurrently with each such prepayment the Borrowers shall pay accrued interest
on the principal so prepaid to the date of such prepayment. The amounts of such
prepayments may be reborrowed, subject to the limitations in Section 1.1.
1.8. Day of Payment. Whenever any payment to be made hereunder shall become due
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and payable on a day which is not a Business Day (as defined below), such
payment may be made on the next succeeding Business Day and, in the case of any
payment of principal, such extension of time shall in such case be included in
computing interest on such payment. As used herein, "Business Day" shall mean
any day which is not a Saturday or Sunday and on which banks in the State of New
York are not authorized or required to close. Interest on past due principal and
accrued interest thereon shall be calculated as follows: The amount of principal
past due multiplied by the Default Rate and multiplied by a fraction, the
numerator of which is the number of days such principal and interest is past due
and the denominator of which is 360.
1.9. Use of Proceeds. Funds advanced under the Loan shall be used solely for
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(i) development of the Company's Free Trade Zone, and (ii) the working capital
purposes and capital expenditures of the Borrowers.
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1.10. Obligation to Pay. The Borrowers shall make all payments hereunder in
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full without offset, reduction or deduction of any kind or amount or for any
reason. Notwithstanding the face amount of the Note, the liability of the
Borrowers shall be equal at all times to the actual outstanding principal
indebtedness to the Lender under the Note together with interest thereon and all
fees, costs and expenses provided herein.
SECTION 2. COLLATERAL
2.1 Security Documents. The Loan shall be secured by and the Lender shall be
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entitled to the benefits of Security Agreements executed by each of the
Borrowers on the date hereof (collectively, the "Security Documents"). The
Borrowers shall duly execute and deliver the Security Documents, all consents of
third parties necessary to permit the effective granting of the Liens created in
such agreements, financing statements pursuant to the Uniform Commercial Code
and other documents, all in form and substance satisfactory to the Lender, as
may be reasonably required by the Lender to grant to the Lender a valid,
perfected and enforceable first priority Lien (except for the Lien of Marine
Midland Bank referred to in Section 3.14) on and security interest in the
Collateral. The Borrowers shall file or cause to be filed such financing
statements in each jurisdiction necessary to grant the Lender a valid, perfected
and enforceable first priority Lien (except for the Lien of Marine Midland Bank
referred to in Section 3.14) on and security interest in the Collateral not
later than five business days after the date of this Agreement. As promptly as
practicable, but in no event later than January 10, 2000, the Borrowers shall
file or cause to be filed termination statements pursuant to the Uniform
Commercial Code and other documents as may be required to terminate all Liens of
Marine Midland Bank.
3. REPRESENTATIONS AND WARRANTIES OF BORROWERS. The Borrowers hereby jointly
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and severally represent and warrant to the Lender as follows (provided that such
representations and warranties with respect to IQXpert Holdings Inc., IQXpert
Inc. and ExtraTime Technologies Inc. shall be subject to Section 3.19):
3.1 Due Organization and Qualification. Each Borrower is duly organized,
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validly existing and in good standing under the laws of the jurisdiction of its
formation. Each Borrower has all requisite corporate power and authority to own,
lease and operate its assets and properties and to
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carry on its business as presently conducted and as presently contemplated. Each
Borrower is duly qualified to transact business and is in good standing in each
jurisdiction in which the nature of its business or the location of its property
requires such qualification, except where the failure to do so would not have a
material adverse effect on its business, operations, assets, prospects or
condition (financial or otherwise). The Company does not have any domestic
Subsidiary except as listed on Schedule 1 hereto.
3.2 Constituent Documents. True and complete copies of each Borrower's
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Certificate of Incorporation and By-laws, as in effect on the date hereof
(collectively, the "Borrower Constituent Documents"), have been delivered to the
Lender.
3.3. Financial Statements. The audited consolidated balance sheet and related
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statements of income and cash flow for the Company as at and for the fiscal year
ended on December 31, 1998 (the "1998 Financial Statements") and the unaudited
consolidated balance sheet (the "Company Interim Balance Sheet") and related
statement of income of the Company as at and for the nine-month period ended on
September 30, 1999 (collectively, the "Company Interim Financial Statements";
and together with the 1998 Financial Statements, the "Company Financial
Statements"), true and complete copies of all of which have been delivered to
the Lender, present fairly in all material respects the consolidated financial
condition of the Company as at the dates indicated therein and the consolidated
results of operations of the Company for the periods covered thereby. The
Company Financial Statements have been prepared in accordance with GAAP
consistently applied, subject only in the case of the Company Interim Financial
Statements to ordinary year-end adjustments, none of which are material
individually or in the aggregate, and the absence of footnotes. The financial
books and records of the Company are in all material respects complete and
correct, have been maintained in accordance with good business practices, and
accurately reflect the bases for the consolidated financial condition and
results of operations set forth in the Company Financial Statements.
3.4 Absence of Changes. Since December 6, 1999, there has not been (i) any
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significant adverse change in the financial condition, results of operations,
assets or business of the Borrowers, (ii) any repayment of any indebtedness or
any borrowing of or agreement to borrow any money or any material Liabilities
incurred by the Borrowers, other than current Liabilities incurred in the
ordinary course of business, (iii) any material asset or property of the
Borrowers made subject to a Lien, (iv) any declaration or payment of dividends
on, or other distributions with respect to, or any direct or indirect redemption
or repurchase of, any shares of the capital
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stock of Borrowers, (v) any issuance of any stocks, bonds or other securities of
the Borrowers, or any options, warrants or rights or agreements or commitments
to purchase or issue such securities, (vi) any mortgage, pledge, sale,
assignment or transfer of any material tangible or intangible assets of the
Borrowers, except with respect to tangible assets effected in the ordinary
course of business to persons not related to the Borrowers, (vii) any loan by
the Borrowers to any officer, director, employee or shareholder of the Borrowers
or any affiliate thereof, (viii) any material damage, destruction or loss
(whether or not covered by insurance) adversely affecting the assets, property
or business of the Borrowers, (ix) any purchase or other acquisition of assets
or property by the Borrowers other than in the ordinary course of business, (x)
any change in the accounting methods or practices followed by the Borrowers,
(xi) any operation of the business of the Borrowers outside of the ordinary
course of business and/or inconsistent with past practice, (xii) any waiver of
any valuable right of the Borrowers, or the cancellation or reduction of any
material debt or claim held by the Borrowers, or (xiii) any commitment or
agreement (contingent or otherwise) to do any of the foregoing.
3.5 Power and Authority. Each of the Borrowers has the requisite corporate
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power and authority to execute and deliver this Agreement and all other
agreements and certificates referred to in or contemplated by this Agreement and
to perform its obligations hereunder and thereunder. The execution, delivery and
performance of this Agreement and all other agreements and certificates referred
to in or contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of the Borrowers. This Agreement has been
duly executed and delivered by the Borrowers and is (and such other agreements
and certificates, when executed and delivered, will be) the valid and binding
obligations of the Borrowers enforceable against the Borrowers in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, moratorium, insolvency, reorganization or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity or at
law).
3.6 Tax Matters. Each of the Borrowers has timely filed all Tax Returns that
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it has been required to file through the date hereof, and has timely paid in
full all Taxes which were due and payable by it through the date hereof. The
provisions for Taxes reflected on the Company Interim Balance Sheet are adequate
to cover all accrued and unpaid Taxes of the Company for all periods ending on
or before September 30, 1999, and nothing has occurred subsequent to that date
to make such provisions inadequate. The Company has established and is
maintaining current accruals, and will establish and maintain adequate accruals
subsequent to the date hereof, that are in the case of current accruals, and
will be in the case of accruals subsequent to the date
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hereof, accurately reflected in the books and records of the Company and are,
and will be, adequate for the payment of any Taxes incurred but not yet due and
payable. No waivers or extensions of any applicable statute of limitations for
the assessment or collection of Taxes with respect to any Tax Returns of the
Borrowers are currently in effect or are currently proposed. Each of the
Borrowers has collected or withheld and paid over to the proper governmental or
regulatory bodies all amounts required to be so collected or withheld and paid
over under all applicable Laws. No action, suit, proceeding, investigation,
audit, claim or assessment is presently pending or, to the Borrowers' knowledge,
threatened with regard to any Taxes that relate to the Borrowers for which any
of the Borrowers is or could reasonably be expected to be liable. There is no
unresolved claim by a taxing authority in any jurisdiction where any of the
Borrowers does not anticipate to file Tax Returns that it is or could reasonably
be expected to be subject to taxation by such jurisdiction. There are no Liens
for Taxes (other than for Taxes not yet due and payable) upon any assets or
property of the Borrowers. The Lender acknowledges that the foregoing
representations and warranties made in this Section 3.6 do not apply in respect
of Accurate Components Inc. ("Accurate") or Market Trading Concepts Inc.
("Market Trading") (recently acquired, wholly-owned subsidiaries of Borrowers).
The Lender further acknowledges that the representations and warranties made in
respect of Accurate and Market Trading as to Tax matters in that certain Stock
Purchase Agreement by and between Borrowers, Accurate, Market Trading and
Xxxxxxx Xxxxx, dated November 12, 1999, have been made available to the Lender
for its review and, to the Borrowers' knowledge, they are true and correct.
None of the Borrowers (i) has made any other election pursuant to the Code other
than elections that relate solely to matters of accounting, depreciation, or
amortization, that could reasonably be expected to have an adverse effect on,
its financial condition, its business as presently conducted or presently
proposed to be conducted or any of its properties or assets; and (ii) has at any
time filed a consent to the application of Section 341(f)(2) of the Code to any
property or assets held, acquired or to be acquired by it. None of the Borrowers
is a party to any tax allocation or sharing agreement, and has no liability for
the Taxes of any other entity under Treasury Regulation (S) 1.1502-6 (or any
similar provision of state, local or foreign law), as a transferee or successor,
by contract, or otherwise.
3.7 Compliance with Laws; Permits. Except as set forth on Schedule 3.7
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hereto, each of the Borrowers is and has been in material compliance with all
Laws applicable to it or any of its properties or operations, including, without
limitation, all Environmental Laws. None of the Borrowers has received any
notice of its violation or alleged violation of any Law. Each of the borrowers
has all Permits necessary for the conduct of its business and operations as
currently
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conducted. All material Permits of the Borrowers are valid and in full force and
effect. No violations have occurred in respect of any such Permit and no action
or proceeding is pending nor, to the Borrowers' knowledge, threatened to revoke
or limit any such Permit.
3.8 No Breach; Consents; Payments. The execution, delivery and performance of
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this Agreement and all other agreements or certificates referred to in or
contemplated by this Agreement by the Borrowers and the consummation of the
transactions contemplated hereby and thereby will not (i) result in any Lien
upon any property of the Borrowers (other than the Lien in favor of the Lender
pursuant to the Security Documents); or (ii) violate, conflict with or otherwise
result in the breach of any of the terms and conditions of, result in a material
modification of or accelerate or trigger the rights of any person under, or
constitute (or, with the giving of notice or lapse of time or both, would
constitute) a default or termination under (a) any of the Borrowers Constituent
Documents; (b) any instrument, contract or other agreement to which any of the
Borrowers is a party or by or to which any of the Borrowers or any of its
property is bound or subject; (c) any Law applicable to Borrowers or any of its
property or operations; or (d) any Permit. Except as set forth in Schedule 3.8,
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no Consent is required on the part of the Borrowers in connection with the
execution, delivery or performance of this Agreement, the Security Documents or
the consummation of the transactions contemplated hereby. There are no payments,
Liabilities or obligations under or pursuant to any Law or contract or other
agreement to which any of the Borrowers is a party which are required to be made
or performed by the Borrowers to any person, arising out of or as a result of
the transactions contemplated by this Agreement.
3.9 Litigation; Claims. Except as set forth on Schedule 3.9 hereto, there are
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no suits or actions, administrative, arbitration or other proceedings or
governmental investigations pending or, to the Borrowers' knowledge, threatened
against or affecting the Borrowers or any of their property or assets. Except as
set forth on Schedule 3.9, to the Borrowers' knowledge, no person has notified
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the Borrowers or any of their affiliates of a material claim against the
Borrowers alleging any personal property or economic injury, loss or damage
incurred as a result of or relating to the use of any products sold by or on
behalf of, or services rendered by, the Borrowers. There is no judgment, order,
injunction, decree or award against Borrowers which is not satisfied and remains
outstanding.
3.10 Employment Matters. The Borrowers have not at any time during the last
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three (3) years had, nor, to the Borrowers' knowledge, is there now threatened,
any walkout, strike, picketing, work stoppage, planned work slowdown or any
similar occurrence. There are no material
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controversies or grievances pending or, to the Borrowers' knowledge, threatened
between the Borrowers and any of their employees. No union or other collective
bargaining unit has been certified or formally recognized by the Borrowers.
3.11 Material Agreements. Each of the Borrowers is in compliance with the terms
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and conditions of its material contracts, except where the failure to be in such
compliance could not reasonably be expected to have a material adverse effect on
the business, operations, assets, or condition (financial or otherwise) of the
Borrowers, taken as a whole.
3.12 Real Estate. The Borrowers do not own, in fee or otherwise, or have the
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right or obligation to acquire any real property or buildings. Each of the
leases, subleases and other agreements pursuant to which the Borrowers occupy
any real property or buildings is a valid agreement in full force and effect,
creates a good and valid leasehold estate in the property leased thereby, and
Borrowers are in material compliance with the provisions of each such agreement
and no other party thereto is, to Borrowers' knowledge, in material default
thereunder.
3.13 Borrowers Intangible Property. Each of the Borrowers has either all
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right, title and interest in or valid and binding rights under contract to use
all items of Borrowers Intangible Property (as defined below) material to, or
necessary to conduct, the business of the Borrowers as presently conducted or
contemplated to be conducted. None of the Borrowers Intangible Property (other
than any patents and patent rights) materially infringes upon or violates any
rights owned or held by any other person. To the Borrowers' knowledge, none of
the patents and patent rights included in the Borrowers Intangible Property
materially infringes upon or violates any rights owned or held by any other
person. There is not pending nor, to the Borrowers' knowledge, threatened any
claim, suit or action against the Borrowers contesting or challenging the rights
of the Borrowers in or to any of the Borrowers Intangible Property or the
validity of any of the Borrowers Intangible Property. To Borrowers' knowledge,
there is no material infringement upon or unauthorized use of any of the
Borrowers Intangible Property owned by the Borrowers by any third party. None of
the Borrowers is in default (or, with the giving of notice or lapse of time or
both, would be in default) under any contract to use the Borrowers Intangible
Property. None of the Borrowers (nor any associate thereof) nor any officer,
director or affiliate or immediate family member, as the case may be, thereof
has any right to or interest in any of the Borrowers Intangible Property,
including, without limitation, any right to payments (by royalty or otherwise)
in respect of any use or transfer thereof.
The "Borrowers Intangible Property" means all patents and patent rights,
trademarks and
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trademark rights, trade names and tradename rights, service marks and service
xxxx rights, service names and service name rights, brand names, inventions,
processes, formulae, copyrights and copyright rights, trade dress, business and
product names, logos, slogans, designs, trade secrets, industrial models,
proprietary data, methodologies, computer programs and software (including all
source codes) and related documentation, technical information, manufacturing,
engineering and technical drawings, know-how, inventions, works of authorship,
management information systems, and all pending applications for and
registrations of patents, trademarks, service marks and copyrights used in the
business of the Borrowers, in each such case, including all forms (e.g.,
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electronic media, computer disks, etc.) in which such items are recorded.
3.14 Title to Properties and Assets. Each of the Borrowers has good title to
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all of the property and assets owned or purported to be owned by it which are
reflected as assets on its balance sheet and those not so reflected on its
balance sheet because not required to be reflected thereon, but which are used
in the Borrowers' business (except for inventory or other assets disposed of in
the ordinary course of business consistent with past practice since the date of
such Borrower's most recent balance sheet), free and clear of any Lien, except
(i) Liens for Taxes not yet due and payable; (ii) Liens of materialmen,
mechanics, carriers, landlords and like persons which are not due and payable or
which are being contested in good faith and which are not material in the
aggregate; (iii) Liens on assets of IQXpert Holdings Inc., IQXpert Inc. and
ExtraTime Technologies Inc. existing on November 30, 1999; and (iv) as set forth
on Schedule 3.14 hereto ("Permitted Liens"). Other than in the ordinary course
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of business, no person has any written or oral agreement, option, understanding,
commitment or any right or privilege to purchase, lease or license any of the
Borrowers' property or assets. None of the Liens set forth on Schedule 3.14
hereto is a Lien on any accounts receivable or inventory of the Borrowers,
except the Lien of Marine Midland Bank. The line of credit secured by the Lien
of Marine Midland Bank has expired and the only indebtedness secured by the Lien
is one or more stand by letters of credit that will expire on or before December
31, 1999.
3.15 Employee Benefit Plans. All Employee Benefit Plans (as defined in Section
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3(3) of ERISA) maintained by the Borrowers (or any affiliate thereof) or under
which the Borrowers have any obligations (other than obligations to make current
wage or salary payments) in respect of any of the employees of the Borrowers or
their beneficiaries (each individually, a "Borrowers Employee Benefit Plan" and
collectively, the "Borrowers Employee Benefit Plans") have complied in all
material respects in form, operation and administration with their respective
provisions, any applicable provisions of ERISA, the Code, and all other
applicable Laws. All contributions to and payments from the Borrowers Employee
Benefit Plans which have been
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required to be made in accordance with the provisions of the Borrowers Employee
Benefit Plans and, where applicable, ERISA and the Code have been made or are
adequately accrued and reflected on the books and records of the Borrowers.
There are no unfunded Liabilities in respect of any such Borrowers Employee
Benefit Plan. Neither the Borrowers, nor, to the Borrowers' knowledge, any of
its officers, employees or agents has committed any breach of fiduciary
responsibility with respect to the Borrowers Employee Benefit Plans to which
ERISA is applicable which could subject the Borrowers to any Liability under
ERISA. None of the Borrowers is and has ever been obligated to make
contributions to any Multiemployer Plan. The Borrowers do not have any early
retirement options or plans pursuant to which employees may choose to take early
retirement.
3.16 Transactions with Related Parties. Except as set forth on Schedule 3.16
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hereto, no director, officer or affiliate of the Borrowers nor any of their
immediate family members, as the case may be: (i) has borrowed money from or
loaned money to the Borrowers which has not been repaid; (ii) has an interest in
any property, rights or assets owned and/or used by the Borrowers in its
business; or (iii) is party to any contract or other agreement with the
Borrowers or is engaged in any material transaction or arrangement with the
Borrowers.
3.17 Environmental Matters. Each of the borrowers has: (i) materially complied
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with all Environmental Laws; (ii) not received any notice from any governmental
authority that any real property now or formerly owned, leased, managed,
operated or otherwise used by it is on any federal, state or foreign "superfund"
or similar list or has been the site of any activity giving rise to any
Liability; (iii) not received any notice of any Environmental Claim; and (iv)
stored, handled, used, released, discharged and disposed of all substances used
in their operations and wastes or by-products from their operations, whether
Hazardous Materials or not, in material compliance with all Environmental Laws.
No Hazardous Materials or other substances or wastes have been spilled,
released, discharged or disposed of from, on or under any property owned, leased
or operated by the Borrowers during its occupancy. None of the Borrowers has any
Liability with respect to the clean-up or remediation of any treatment, storage
or disposal site or facility.
3.18. Year 2000. Borrowers' critical information technology systems which are
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used in, or required for the conduct of, their business as currently conducted
or presently proposed to be conducted may be used prior to, during and after the
calendar year 2000 without material error or delay relating to date data and
will not otherwise fail: (i) to deal with or account for transitions or
comparisons from, into and between the years 1999 and 2000 accurately; (ii) to
recognize or
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accurately process any specific date in 1999 or 2000; or (iii) to account
accurately for the year 2000's status as a leap year, including recognition and
processing of the correct date on February 29, 2000.
3.19 Exceptions. Anything herein to the contrary notwithstanding, if any
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representation and warranty in this Section 3 with respect to IQXpert Holdings
Inc., IQXpert Inc. or ExtraTime Technologies Inc. would have been false or
incorrect if made on November 30, 1999, then Borrowers shall not be deemed to be
in breach of such representation or warranty with respect to IQXpert Holdings
Inc., IQXpert Inc. or ExtraTime Technologies, Inc. on or after the date hereof
by reason of any of the facts or circumstances that would have made such
representation and warranty false or incorrect on November 30, 1999.
SECTION 4. AFFIRMATIVE COVENANTS
The Borrowers covenant and agree that so long as this Agreement shall remain in
effect or any indebtedness of the Borrowers to the Lender hereunder remains
outstanding, the Borrowers each will:
4.1. Existence. Do or cause to be done all things necessary to preserve, renew
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and keep in full force and effect its legal existence.
4.2. Taxes. Pay and discharge promptly when due all Taxes, assessments and
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governmental charges or levies imposed upon it or upon its income or profits or
in respect of its property before the same shall become delinquent or in default
unless the validity or amount thereof is being contested in good faith by
appropriate proceedings and the Borrowers have maintained adequate reserves with
respect thereto in accordance with GAAP.
4.3 Litigation and Other Notices. Upon knowledge by the Borrowers, give the
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Lender prompt written notice of the following:
(a) the issuance by any court or government agency or authority of any
injunction, order decision or other restraint prohibiting, or having the
effect of prohibiting, the making of the Loan hereunder, or invalidating,
or having the effect of invaliding, any provision of this Agreement or any
of the Loan Documents;
(b) the filing or commencement of any action, suit or proceeding against
any of the
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claim which could have a Material Adverse Effect;
(c) any Event of Default (as hereinafter defined) or event or condition
which, with the giving of notice or lapse of time or both, would
constitute an Event of Default, specifying the nature and extent thereof
and the action (if any) which is proposed to be taken with respect
thereto.
4.4. Financial Statements.
--------------------
(a) Provide the Lender quarterly consolidated and consolidating unaudited
financial statements of the Company and Subsidiaries, including
balance sheets and statements of income, cash flow and stockholders
equity, within 45 days after the end of each quarter.
(b) Provide the Lender annual audited, consolidated and consolidating
financial statements of the Company and its Subsidiaries, including a
balance sheet and statements of income, cash flow and stockholders
equity, within 90 days after the end of each fiscal year, certified
by a nationally recognized independent public accounting firm
reasonably acceptable to the Company's Board of Directors,
accompanied by an opinion of the Company's independent public
accountant.
4.5. Other Information. Provide the Lender with any other documents and
-----------------
information, financial or otherwise, reasonably requested by the Lender from
time to time.
SECTION 5. NEGATIVE COVENANTS
The Borrowers covenant and agree that so long as this Agreement shall remain in
effect or any indebtedness of the Borrowers to the Lender hereunder remains
outstanding, the Borrowers will not:
5.1. Liens. Incur, create, assume or permit to exist any Lien or other
-----
encumbrance of any kind or nature on any of its property or assets including,
without limitation, the Collateral, whether owned at the date hereof or
hereafter acquired, or assign or convey any rights to or security interests in
any future revenues, except for (i) Permitted Liens, (ii) a purchase money
------
security interest incurred in connection with the purchase of a capital asset
and granting a Lien on the asset purchased only ("Purchase Money Security
Interest"), (iii) Liens and encumbrances created in favor of the Lender as
contemplated by the Security Documents, and (iv) Liens securing the payment of
taxes, assessments and governmental charges or levies that are not delinquent.
5.2 Indebtedness. Incur, create, assume or permit to exist any indebtedness
------------
other than (i)
13
indebtedness incurred hereunder, (ii) indebtedness to trade creditors incurred
in the ordinary course of business, (iii) a Purchase Money Security Interest,
and (iv) a Refinancing, proceeds of which are used to repay in full all of the
obligations of the Borrowers under this Agreement and the other Loan Documents.
5.3 Dividends and Distributions. Declare or pay, directly and indirectly, any
---------------------------
cash dividends or make any other cash distribution, with respect to any shares
of its capital stock or directly or indirectly redeem, purchase, retire or
otherwise acquire for value any shares of any class of its capital stock or set
aside any amount for any such purpose, or agree to do any of the foregoing.
5.4 Consolidations and Mergers. Consolidate with or merge into any other
--------------------------
person, except any Borrower may consolidate with or merge into any other
Borrower.
5.5 Investments. Own, purchase or acquire any stock, obligations, assets or
-----------
securities of, or any interest in, or make any capital contribution or loan or
advance of money (other than to any other Borrower or except as set forth in
Section 5.10 below), credit or property to, any other person.
5.6 Guarantees. Guarantee, endorse, become surety for, or otherwise in any
----------
way become or be responsible for the obligations of any other person, other than
Subsidiaries of the Company.
5.7 Subsidiaries. Create any Subsidiaries, unless such Subsidiary becomes a
------------
party hereto and to the Security Documents by executing joinder agreements in
form and substance reasonably satisfactory to the Lender.
5.8 Capital Stock. Sell or issue any capital stock, or any stock or security
-------------
covertible into or exchangeable for capital stock and any right, warrant or
option to acquire capital stock or such convertible securities ("Common Stock
Equivalents") or any evidence of indebtedness issued in conjunction with Common
Stock Equivalents, except for (a) the grant of options and warrants to purchase
shares of the Company's Common Stock (and the issuance of shares of the
Company's Common Stock upon the exercise of such options and warrants, including
any of the foregoing that are presently outstanding) by the Compensation
Committee of the Company's Board of Directors, (b) the sale by the Company of
Common Stock pursuant to an Initial Public Offering, as hereafter defined,
proceeds of which are used to repay in full all of the obligations of the
Borrowers under this Agreement and the other Loan Documents, (c) the issuance of
any
14
Common Stock Equivalent pursuant to a stock split, stock dividend or similar
event which is approved by the Company's Board of Directors, (d) a stock for
stock acquisition, provided the acquired person becomes a party hereto and to
the Security Documents by executing joinder agreements in form and substance
reasonably satisfactory to the Lender, or (e) the sale by the Company of capital
stock, proceeds of which are used to repay in full all of the obligations of the
Borrowers under this Agreement and the other Loan Documents.
5.9. Additional Negative Pledge. Enter into any agreement with any person,
--------------------------
other than the Lender pursuant to this Agreement, that materially restricts or
limits the Borrowers' authority or ability to pledge its assets or properties or
otherwise grant any Liens on its assets or property.
5.10 Foreign Subsidiaries. Make any loans or advances of funds borrowed
--------------------
hereunder to any Subsidary of the Company that is not a Borrower, other than (i)
in the ordinary course of business, or (ii) loans or advances not in excess of
$250,000 in the aggregate.
SECTION 6. CONVERSION RIGHT
In the event that the Borrowers have not paid the Lender on the date such
payment is due (whether by passage of time, acceleration or otherwise) the full
amount of the unpaid principal of and any accrued interest on the Loan and any
other amounts owing hereunder, then the Lender shall have the option at any time
thereafter and prior to payment in full of such amounts by the Borrowers, to
convert all of the amount of outstanding principal, accrued interest and other
amounts into common stock of the Company at a valuation of the Company,
following the conversion, equal to Three Hundred Million Dollars ($300,000,000).
For example, if the outstanding principal and accrued interest equals $10
million, then the Lender shall have the right to convert the $10 million to
receive ownership of an aggregate amount of common stock equal to 3.333% of the
total outstanding capital stock of the Company (immediately after giving effect
to the issuance of such shares to the Lender). The Lender may exercise its
conversion right under this Section by providing written notice of such exercise
to the Company. The Company shall issue the applicable number of shares of
capital stock to the Lender promptly on receipt of the Lender's written notice.
The Company shall have the right to pay the Lender the accured interest on the
Loan after receipt of such notice and prior to the issuance of the shares . In
the event that the Lender exercises its conversion right, the Lender hereby
agrees to be bound by the terms of Section 6.2(l) of that certain Agreement and
Plan of Merger dated as of November 30, 1999 by and between the Company,
PartMiner Acquisition Corp., IQXpert Holdings Inc., Information Handling
Services Inc., Xxxxx New Ventures Limited, Xxxx X. Xxxxx, Xxxxxxx X. Xxxxxx,
Xxxxxxxx Xxxxxxx Salem, Xxxxx X. Xxxx and Xxxxx X. XxXxxxxxx, III
15
(the "Agreement and Plan of Merger").
SECTION 7. EVENT OF DEFAULT; REMEDIES
7.1 Events of Defaults. Each of the following events shall be an Event of
------------------
Default hereunder:
(a) Subject to notice to Borrowers and ten (10) days to cure, if any
Borrower shall fail to pay when due any principal or interest or any
other sum payable to the Lender hereunder or under the other Loan
Documents; or
(b) Subject to notice to Borrowers and thirty (30) days to cure, if any
Borrower shall default in the observance or performance of any
covenants or agreements contained in this Agreement or the other Loan
Documents; or
(c) If any representation or warranty made by the Borrowers in this
Agreement or any other Loan Documents or in connection with any of the
transactions contemplated herein shall prove to have been false or
incorrect in any material respect on the date as of which it was made
or deemed to have been made; or
(d) If any Borrower shall make an assignment for the benefit or creditors,
or shall admit in writing its inability to pay its debts as they
become due, or shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt or insolvent, or shall file any petition or
answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under any present or future statute, law or regulation, or shall file
any answer admitting or not contesting the material allegations of a
petition filed against it in any such proceeding, or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of all or any substantial part of its properties; or
(e) If, within sixty (60) days after the commencement of any action
against any Borrower seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under any present or future statute, law or regulation, such action
shall not have been dismissed or stayed or if, within sixty (60) days
after the appointment, without the consent or acquiescence of any
16
Borrower, of any trustee, receiver, or liquidator of any Borrower or
any substantial part of any Borrower's properties, such appointment
shall not have been vacated; or
(f) If any order, judgment, or decree shall be entered in any proceeding
against any Borrower awarding a money judgment or judgments against
such Borrower aggregating more than $500,000, and if, within thirty
(30) days after entry thereof, such order, judgment or decree shall
not have been discharged or execution thereof stayed pending appeal;
of if, within thirty (30) days after the expiration of any such stay,
such judgment, order or decree shall not have been discharged; or
(g) Default shall be made with respect to any material indebtedness of any
Borrower if the effect of any such default shall be to accelerate or
permit the acceleration of the maturity of such indebtedness; or any
amount of principal or interest in respect of such indebtedness shall
not be paid when and as due (after giving effect to any period of
grace specified for such payment in the instrument evidencing or
governing the same);
(h) This Agreement or any other Loan Document shall for any reason cease
to be, or shall be asserted by any Borrower not to be, a legal, valid
and binding obligation of any Borrower, enforceable in accordance with
its terms, or the security interest or Lien purported to be created by
any of the Security Documents shall for any reason cease to be, or be
asserted by any Borrower not to be, a valid, first priority perfected
security interest in any Collateral.
7.2 Remedies. Upon the happening of any Event of Default and at any time
--------
during its continuance thereafter, by written notice by Lender to Borrowers
(except if an Event of Default described in Section 7.1(d) or (e) shall occur in
which case acceleration of the Loan shall occur automatically without any such
notice), the Lender may declare the entire unpaid principal and any accrued
interest in respect of the Loan to be immediately due and payable, and the same
shall thereupon become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrowers. Upon such declaration the Lender shall have no further obligation to
make any Advances. The Lender shall have all rights and remedies of a secured
party under the Uniform Commercial Code of the State of New York, under the
Uniform Commercial Code of any other state in which any Collateral may be
situated
17
and, additionally, all the rights and remedies referred to herein or in any Loan
Document and under any other applicable law relating to this Agreement or the
Collateral.
7.3 Rights and Remedies Cumulative. No right or remedy herein conferred upon
------------------------------
the Lender is intended to be exclusive of any other right or remedy contained
herein or in any instrument or document delivered in connection with or pursuant
to this Agreement or the other Loan Documents, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
7.4 Rights and Remedies Not Waived. No course of dealing between the
------------------------------
Borrowers and the Lender or any failure or delay on the part of the Lender in
exercising any rights or remedies of the Lender and no single or partial
exercise of any rights or remedies hereunder or under the other Loan Documents
shall operate as a waiver or preclude the exercise of any other rights or
remedies hereunder.
SECTION 8. CERTAIN DEFINITIONS
"Advance" shall mean an advance of funds by the Lender under this
Agreement.
"Collateral" shall mean the collateral described in the Security Documents.
"Contract or other agreement" shall mean and includes all contracts,
agreements, understandings, indentures, notes, bonds, loans, instruments,
leases, mortgages, commitments, obligations or other binding arrangements, oral
or written.
"Default Rate" shall mean the Prime Rate, plus 2%.
"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, Liens,
investigations, proceedings or notices of noncompliance or violation (written or
oral) by any person alleging potential Liability (including Liability for
enforcement, investigatory costs, cleanup costs, governmental response costs,
removal costs, remedial costs, natural resources damages, property damages,
personal injuries or penalties) arising out of, based on or resulting from (i)
the presence, or release or threatened release into the environment, of any
Hazardous Materials at any location (whether or not owned) presently or formerly
operated, leased or managed by any Borrower, or (ii) any and
18
all claims by any third party seeking damages, contribution, indemnification,
costs recovery, compensation or injunctive relief resulting from the presence or
release of any Hazardous Materials.
"Environmental Laws" shall mean any laws, statutes, regulations, rules or
orders which relate to or otherwise impose Liability or a standard of conduct
concerning the discharge, emission, storage, treatment, transportation,
handling, release, threatened release, or disposal of Hazardous Materials,
including, but not limited to, the Air Pollution Control Act, as amended, the
Federal Water Pollution Control Act, as amended, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Resource
Conversation and Recovery Act of 1976, as amended, and the Toxic Substances
Control Act of 1976, as amended, and any other similar federal, state or local
statutes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as intepreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
"GAAP" shall mean United States generally accepted accounting principles.
"Hazardous Materials" shall mean any pollutant, contaminant, hazardous,
radioactive or toxic substance, material, constituent or waste, or any other
waste, substance, chemical or material regulated under any Environmental Law,
including (i) petroleum, crude oil and any fractions thereof, (ii) natural gas,
synthetic gas and any mixtures thereof, (iii) asbestos and/or asbestos-
containing material, (iv) radon and (v) polychlorinated biphenyls ("PCBs"), or
materials or fluids containing PCBs.
"Initial Public Offering" shall mean an initial public offering of the
Company's securities.
"Laws" shall mean all federal, state, local and foreign laws, statutes,
ordinances, regulations, orders, judgments, injunctions, awards or decrees.
"Liabilities" shall mean debts, liabilities or obligations, whether
absolute or contingent, asserted or unasserted, accrued or unaccrued, known or
unknown, liquidated or unliquidated, matured or unmatured, due or to become
due, or fixed or unfixed.
"Lien" shall mean and includes any lien, pledge, mortgage, security
interest, claim, lease,
19
charge, option, right of first refusal or offer, easement, servitude, transfer
restriction or voting requirement under any or similar agreement, or any other
encumbrance, restriction or limitation whatsoever.
"Loan" shall mean the outstanding principal balance of indebtedness
advanced by the Lender to the Borrowers hereunder together with all interest
accrued thereon in accordance hereby and all cost and expense payable hereunder.
"Loan Documents" shall mean this Agreement, the Note, the Security
Documents, and any other instrument, document or agreement executed and
delivered at any time and from time to time in connection herewith.
"Material Adverse Effect" shall mean a material adverse effect on (i) the
businesses, assets, operations or financial or other condition of the Borrowers,
taken as a whole, or (ii) the Lender's Lien on any material portion of the
Collateral.
"Note" shall mean the Senior Secured Promissory Note in the form of Exhibit
B attached hereto, delivered by the Borrowers to the Lender pursuant to Section
1.4 hereof, as amended from time to time.
"Permit" shall mean all licenses, permits, orders and approvals of federal,
state, local and foreign governmental or regulatory bodies necessary for the
conduct of a person's business and operations.
"person" shall mean any individual, corporation, partnership, firm, joint
venture, association, joint-stock company, trust, unincorporated organization,
governmental or regulatory body or other entity.
"Prime Rate" shall mean the per annum rate of interest publicly announced
from time to time by First Union National Bank as its prime rate.
"Refinancing" shall mean a loan, credit facility or other debt financing
provided by a bank, other lending institution or institutional investor
providing for the availability of funds in an amount at least sufficient to
repay in full all of the obligations of the Borrowers under this Agreement and
the other Loan Documents.
20
"Subsidiary" shall mean with respect to any person, the parent or such
person, any corporation, association or other business entity of which
securities or other ownership interests representing more than 50% of the
ordinary voting power are, at the time as of which any determination is being
made, owned or controlled, directly or indirectly, by the parent or one or more
subsidiaries of the parent.
"Tax Returns" shall mean all written returns, declarations, reports, forms,
estimates, information returns and statements filed in respect of any Taxes and
supplied to any taxing authority in connection with any Taxes.
"Taxes" (or "Tax" where the context requires) shall mean all federal,
state, county, local, foreign and other taxes (including, without limitation,
income, profits, premium, estimated, excise, sales, use, occupancy, gross
receipts, franchise, ad valorem, severance, capital levy, production, transfer,
withholding, employment, unemployment compensation, payroll-related and property
taxes, and other governmental charges and assessments), whether or not measured
in whole or in part by net income, and including deficiencies, interest,
additions to tax or interest and penalties with respect thereto.
SECTION 9. MISCELLANEOUS
9.1. Survival. All agreements, representations, warranties and covenants of
--------
Borrowers contained herein or in any documentation required hereunder shall,
except as otherwise expressly provided herein, survive the execution of this
Agreement and the making of the Loan hereunder and will continue in full force
and effect as long as any indebtedness or other obligation of Borrowers under
this Agreement to the Lender remains outstanding.
9.2. Waivers. Presentment, demand and protest or other notice of any kind,
-------
except as may be otherwise specifically provided herein, are all hereby waived
with respect to the Loan, this Agreement and the other Loan Documents.
9.3. Modification. No modification or waiver of any provision of this
------------
Agreement and no consent by the Lender to any departure therefrom by the
Borrowers shall be effective unless such modification or waiver shall be in
writing and signed by the Lender, and the same shall then be effective only for
the period and on the conditions and for the specific instances and purposes
specified in such writing. No notice to or demand on the Borrowers in any case
shall entitle the Borrowers to any other or further notice or demand in similar
or other circumstances.
21
9.4 Expenses; Indemnity. (a) The Borrowers agree to pay all reasonable out-of-
-------------------
pocket expenses incurred by the Lender in connection with any amendments,
modifications or waivers of the provisions hereof or of the other Loan Documents
or incurred by the Lender in connection with the enforcement or protection of
its rights in connection with this Agreement or the other Loan Documents or in
connection with any pending or threatened action, proceeding, or investigation
relating to the foregoing, in each case including but not limited to the
reasonable fees and disbursements of counsel for the Lender. The Borrowers
further agree that they shall indemnify the Lender from and hold it harmless
against any documentary taxes, assessments or related charges made by any
governmental authority by reason of the execution and delivery of this
Agreement.
(b) The Borrowers agree to indemnify the Lender and its respective
directors, officers, employees and agents against, and to hold the Lender and
each such person harmless from, any and all losses, claims,litigation,
investigations, proceedings, damages, liabilities and related expenses,
including reasonable counsel fees and expenses, incurred by or asserted against
the Lender or any such person arising out of, in any way connected with, or as a
result of this Agreement or the other Loan Documents, the performance by the
parties hereto and thereto of their respective obligations hereunder and
thereunder (including but not limited to the making of the Loan hereunder) and
consummation of the transactions contemplated hereby and thereby ; provided that
--------
such indemnity shall not, as to the Lender and its respective directors,
officers, employees and agents, apply to any such losses, claims, litigation,
investigations, proceedings, damages, liabilities or related expenses to the
extent that they result from the gross negligence or willful misconduct or
unlawful conduct of the Lender. The Borrowers and the Lender agree that any
rights and obligations in this Agreement are independent of any rights and
obligations contained in the Agreement and Plan of Merger.
(c) The provision of this Section 9.4 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of the loan
evidenced by the Note, the invalidity or unenforceability of any term or
provision of this Agreement, or any investigation made by or on behalf of the
Lender. All amounts due under this Section 9.4 shall be payable on written
demand therefor.
9.5 Entire Agreement; Waiver of Jury Trial, etc. This Agreement and the Loan
--------------------------------------------
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any
22
previous agreement among the parties with respect to the transactions
contemplated herein is superseded by this Agreement and the other Loan
Documents. Except as expressly provided herein or in the other Loan Documents,
nothing in this Agreement or the other Loan Documents, expressed or implied, is
intended to confer upon any party, other than the parties hereto, any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
Borrowers and Lender hereby knowingly, voluntarily and intentionally waive any
right they may have to a trial by jury in respect of any litigation hereon or
arising out of, under or in connection with this Agreement or the Note.
Borrowers and Lender hereby acknowledge that they were represented by counsel
in their entering into this Agreement and they were explained the meaning of
this Section 9.5 relating to the waiver of jury trial.
9.6 Benefit of Agreement. This Agreement shall be binding upon the successors
--------------------
and assigns of the Borrowers and inure to the benefit of the Lender and its
successors, endorsees and assigns; provided that the Borrowers may not assign or
transfer any interests and obligations hereunder without the prior consent of
the Lender; provided, further, that the Lender may not assign or transfer any
interests or obligations hereunder, other than to an affiliate of the Lender,
without the prior consent of the Borrowers.
9.7 Notices. Any notice or other communication required or which may be given
-------
hereunder shall be in writing and shall be delivered personally, sent by
facsimile transmission (with confirming copy by overnight courier), or by a
recognized overnight courier for next business day delivery, certified,
registered, or express mail, postage or fees prepaid, and shall be deemed given
when so delivered personally, sent by facsimile transmission with electronic
confirmation of receipt or the next business day after delivered to such
overnight courier or express mail service or, if mailed, five (5) days after the
date of mailing, as follows:
If to the Borrowers:
PartMiner, Inc.
000 Xxxx Xxxxxx Xxxxx
00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
23
Fax (000) 000-0000
with a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax (000) 000-0000
If to the Lender:
HAIC Inc.
00 Xxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxxxxxxx
(zip for regular mail - 80115
zip for express mail - 80112-5776)
Attention: L. Xxxxxxxxxxx Xxxxx
Fax (000) 000-0000
with a copy to:
TBG Services Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
Any party may by notice given in accordance with this Section 9.7 to the other
parties designate another address or person for receipt of notices hereunder.
9.8 New York Law. This Agreement shall be construed in accordance with and
------------
governed by the local laws of the State of New York applicable to contracts
executed and to be performed in such state.
BORROWERS:
PARTMINER, INC.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name:
Title:
24
IQXPERT HOLDINGS INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name:
Title:
IQXPERT INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name:
Title:
EXTRATIME TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name:
Title:
ACCURATE COMPONENTS INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name:
Title:
MARKET TRADING CONCEPTS INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
25
Name:
Title:
LENDER:
HAIC INC.
/s/ Xxxxxxx Xxxxx
By:_____________________________
Name:
Title:
26
