LOAN AGREEMENT (the "Agreement") made this 15th day of February, 2002 by
and between Bodyguard Xxxxxxx.xxx, Inc., a privately owned Delaware corporation
with principal offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Borrower") and Xxxxx X. Xxxxxx, with an office at X.X. Xxx 000, Xxxxxxxxxxxxx,
XX 00000 (the "Lender"). The Lender and/or the Borrower are sometimes
hereinafter individually referred to as a "Party" or collectively as the
"Parties".
W I T N E S S E T H:
WHEREAS, the Borrower desires to borrow the sum of $10,000 from the Lender; and
WHEREAS, the Lender is willing to lend $10,000 to the Borrower on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the representations, warranties, covenants
and agreements herein contained, the receipt and adequacy of which is hereby
acknowledged and accepted, the Parties hereby agree as follows:
1. TERMS OF THE LOAN.
1.1 The Loan. The Lender hereby covenants and agrees to lend to the Borrower
and the Borrower hereby accepts from the Lender the sum of Ten Thousand
($10,000) Dollars (the "Loan"). The full principal amount of the Loan shall
be due and payable at the offices of the Holder on the 120th day following
the execution of this Agreement (the "Due Date"). The Loan shall be
evidenced by a Promissory Note bearing interest at the rate of 15% per
annum, in the form annexed hereto as Exhibit "A" (hereby incorporated by
reference) duly executed by the Borrower, and delivered to the Lender
simultaneously with the execution of this Agreement (the "Note").
1.2 Closing. The closing of the transaction memorialized by this Agreement
shall take place simultaneously with the execution and delivery of this
Agreement and the Note, and the Lender's delivery of the Loan proceeds via
Federal wire transfer or such other manner as shall be mutually agreed upon
(the "Closing").
1.3 Transfer of the Note. The Note may not be sold, assigned, pledged or
hypothecated by the Lender without the prior written consent of the
Borrower, which consent shall not be unreasonably withheld.
1.4 Prepayment. The Borrower shall have the right to prepay the Loan at any
time without penalty.
2. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
The Borrower hereby represent and warrant to the Lender as follows:
2.1 Valid Existence. The Borrower is a corporation duly organized, validly
existing under the laws of the State of Delaware;
2.2 Authority. All corporate action required to be taken by the Borrower to
authorize and execute this Agreement has been taken prior to the delivery
hereof. When executed and delivered to the Lender, this Agreement will be a
binding obligation of the Borrower enforceable in accordance with its
terms; and
2.3 No Brokers. Neither the Borrower nor any of its affiliates has engaged,
consented to or authorized any broker, finder, investment banker or other
third party to act on his behalf, directly or indirectly, in connection
with the transactions contemplated by this Agreement; and hereby
indemnifies and holds the Lender harmless against any lability arising out
of a claim by any individual, firm or entity as a finder.
3. REPRESENTATIONS AND WARRANTIES OF THE LENDER
The Lender hereby represents and warrants as follows:
3.1 No Breach. The Lender has the full power and authority to enter into this
Agreement and to carry out the transaction contemplated hereby. This
Agreement will be a binding obligation of the Lender enforceable in
accordance with its terms;
3.2 Access to Records. Lender and/or his representatives have been offered the
opportunity by the Borrower to examine and make copies of such books and
records of the Borrower and to ask such questions of the Borrower as the
Lender deems necessary to satisfy any due diligence obligations with
respect to the Agreement or the Note; and
3.4 No Brokers. Neither the Lender nor any of his affiliates has engaged,
consented to or authorized any broker, finder, investment banker or other
third party to act on his behalf, directly or indirectly, in connection
with the transactions contemplated by this Agreement; and hereby
indemnifies and holds the Borrower harmless against any lability arising
out of a claim by any individual, firm or entity as a finder.
4. DEFAULT: RIGHTS AND REMEDIES ON DEFAULT
4.1 Default. The occurrence of any one or more of the following events shall
constitute a Default;
(a) The Borrower's failure to repay the Loan as provided herein; or
(b) A petition in bankruptcy is filed against the Borrower or any
guarantor of its liabilities; the Borrower or any guarantor makes an
authorized assignment for the benefit of its creditors; or a receiver,
receiver-manager or trustee for the Borrower is appointed; or
(c) A notice of lien, levy or assessment is filed of record with respect
to all or any substantial portion of the Borrower's assets by the
United States, or by any state, county, municipal, provincial, federal
or other government agency, or any taxes or debts owing to any of the
foregoing become a lien or encumbrance upon the Borrower's assets and
such lien or encumbrance is not released within thirty (30) days after
its creation; or
(d) Judgement is rendered against the Borrower on an uninsured claim of
$100,000 or more and the Borrower fails to commence an appeal of such
judgement within the applicable appeal period; or
(e) A material breach of any of the representations and warranties
contained in this Agreement.
5. CONDITIONS TO CLOSING
5.1 Conditions to the Obligations of the Lender . The obligation of the Lender
to make the Loan shall be subject to the satisfaction of the following
condition which the Borrower hereby covenants to perform on or prior to the
Closing:
(a) The execution and delivery to the Lender of the Agreement and the
Note; and
5.2 Conditions to the Obligations of the Borrower. The obligation of the
Borrower to execute and perform this Agreement, to issue and deliver the
Note to the Lender at the Closing shall be subject to the satisfaction of
the following condition:
(a) The receipt of Loan proceeds of $10,000 payable by Federal wire
transfer, certified, cashier's or bank check to the order of the
Borrower.
6. TERMINATION
6.1 Termination. This Agreement may be terminated:
(a) At any time prior to the Closing by mutual agreement in writing of the
Borrower and the Lender; and/or
(b) At any time after February 28, 2002, by either Party if the Closing
has not previously taken place; or
(c) Upon the Default of either Party, the non-defaulting Party may
terminate this Agreement.
6.2 Effect of Termination. In the event of the termination of this Agreement
pursuant to Section 6.1, this Agreement shall thereafter become void and
have no effect, and no Party shall have any liability to the other Party in
respect thereof, except that nothing herein will relieve any Party from
liability for any breach of any of its representations, warranties,
covenants or agreements contained in this Agreement prior to such
termination.
7. MISCELLANEOUS
7.1 Expenses. Regardless of whether or not the transaction contemplated herein
is consummated, each Party shall promptly pay and be responsible for all
costs and expenses incurred by them in connection with this Agreement and
the transaction contemplated hereby.
7.2 Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the Parties hereto.
7.3 Waiver. At any time prior to the Closing, the Parties hereto, may mutually:
(i) extend the time for the performance of any Party; (ii) waive any
inaccuracies in the representations and warranties contained herein or in
any document delivered pursuant hereto; and (iii) waive compliance with any
of the agreements or conditions contained herein. Any agreement providing
for an extension or waiver shall be valid if set forth in an instrument in
writing signed by the Parties. The failure of any Party to insist upon
strict performance of any of the provisions of this Agreement shall not be
construed as a waiver of any subsequent default of the same or similar
nature or of any of provision, term, condition, warranty or representation
contained herein.
7.4 Binding Effect. All of the terms and provisions of the Agreement shall be
binding upon and inure to the benefit of and be enforceable by and against
the respective heirs, representatives, executors, administrators,
successors and assigns of the Parties.
7.5 Entire Agreement. Each of the Parties covenants that this Agreement,
including the attached Exhibit "A", is intended to and does contain and
embody herein all of the understandings and agreements, both written and
oral, of the Parties.
7.6 Governing Law. This Agreement shall be governed by and interpreted under
and construed in all respects in accordance with the laws of the State of
New York irrespective of the place of domicile or residence of any Party.
7.7 Arbitration. The Parties agree that in the event of a controversy arising
out of the interpretation, construction, performance or breach of the
Agreement, any and all claims arising out of or relating to this Agreement
shall be settled by arbitration according to the Commercial Arbitration
Rules of the American Arbitration Association located in the City of New
York before a single arbitrator. The decision of the arbitrator will be
enforceable in any court of competent jurisdiction. The Parties agree and
consent that service of process in any such arbitration proceeding outside
the City of New York shall be tantamount to service in person within City
of New York and shall confer personal jurisdiction on the American
Arbitration Association. In resolving all disputes between the Parties, the
arbitrator will apply the law of the State of New York. The arbitrator is,
by this Agreement, directed to conduct the arbitration hearing no later
than three (3) months from the service of the statement of claim and demand
for arbitration unless good cause is shown establishing that the hearing
cannot fairly and practically be so convened. The arbitrators will resolve
any discovery disputes by such pre-hearing conferences as may be needed.
All Parties hereby agree and consent that the arbitrator and any counsel of
record to the proceeding will have the power of subpoena process as
provided by law. Notwithstanding the foregoing, if a dispute arises out of
or related to this Agreement, or the breach thereof, before resorting to
arbitration the Parties agree first to try in good faith to settle the
dispute by mediation under the Commercial Mediation Rules of the American
Arbitration Association.
7.8 Originals. This Agreement may be executed in counterparts each of which so
executed shall be deemed an original and constitute one and the same
agreement.
7.9 Addresses of the Parties. Each Party shall at all times keep the other
Party informed of its residence or principal place of business if different
from that stated herein, and promptly notify the other of any change,
giving the address for that Party.
7.10.Notices. Unless otherwise specifically provided for elsewhere in this
Agreement, any notices and other communications required to be given
pursuant to this Agreement shall be in writing and shall be effective when
delivered by hand or upon receipt if sent by mail (registered or certified
mail, postage prepared, return receipt requested) or overnight package
delivery service or upon transmission if sent by telex or facsimile (with
request for confirmation of receipt in a manner customary for
communications of such respective type), except that if notice is received
by telex or facsimile after 5:00 P.M. local time on a business day at the
place of receipt, it shall be effective as of the following business day.
IN WITNESS WHEREOF, each of the Parties has executed this Agreement on the date
first written above.
Bodyguard Xxxxxxx.xxx, Inc.
By: ----------------------
Xxxx Xxxxx, President
Xxxxx X. Xxxxxx
EXHIBIT "A"
PROMISSORY NOTE
$10,000 February 15, 2002
FOR VALUE RECEIVED, Bodyguard Xxxxxxx.xxx, Inc., a privately owned Delaware
corporation with principal offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter referred to as the "Maker") promises to pay to the order of
Xxxxx X. Xxxxxx, with an office at X.X. Xxx 000, Xxxxxxxxxxxxx, XX 00000
(hereinafter referred to as the "Holder"), in lawful money of the United States,
the principal sum of Ten Thousand and 00/100 ($10,000) Dollars with interest at
the rate of fifteen (15%) percent per annum and payable in one lump sum on the
Due Date (as that term is hereinafter defined). The full principal amount of
this note (the "Note") together with any and all accrued interest due hereunder
shall be due and payable at the offices of the Holder on the 90th day following
the execution of this Note (the "Due Date").
1. Events of Default. If one or more of the following events shall occur:
(a) The Maker shall fail to pay the principal and interest due under this Note
and such failure to pay shall continue for a period of ten (10) days after
notice of such failure has been received by Maker from Holder;
(b) The making of a general assignment by Maker for the benefit of creditors;
(c) The filing of any petition or the commencement of any proceeding by or
against the Maker for any relief under any bankruptcy, or insolvency laws
or any laws related to the relief of debtors, readjustment of indebtedness,
reorganizations, compositions or extensions;
(d) The appointment of a receiver of or the issuance of making of a writ or
order of attachment or garnishment against, a majority of the property or
assets of the Maker; or
(e) A judgment is rendered against the Maker on an uninsured claim of $100,000
or more and the Maker fails to commence an appeal of such judgment within
the applicable appeal period;
then and in such event (an "Event of Default"), Maker will be deemed to have
defaulted under this Note and Holder may, on written notice, accelerate all
payments due under this Note.
2. Waiver of Presentment, Etc. Maker hereby waives presentment for payment,
demand, notice of non-payment and dishonor, protest and notice of protest
and waives trial by jury in any action or proceeding arising on, out of,
under or by reason of this Note. The rights and remedies of Holder shall be
deemed cumulative and the exercise of any right or remedy shall not be
regarded as barring any other remedy or remedies. The institution of any
action or recovery any portion of the indebtedness evidenced by this Note
shall not be deemed a waiver of any other right of Holder.
3. Notices. Any notice required or contemplated by this Note shall be deemed
sufficiently given when delivered in person or sent by registered or
certified mail or priority overnight package delivery service to the
principal office of the party entitled to notice or at such other address
as the same may designate in a notice for that purpose. All notices shall
be deemed to have been made upon receipt, in the case of mail or personal
delivery, or on the next business day, in the case of priority overnight
package delivery service.
4. Non-Assignability. This Note may not be sold, assigned, pledged or
hypothecated by the Holder without the written consent of the Maker, which
consent shall not be unreasonably withheld.
5. Headings. The headings in this Note are solely for convenience of reference
and shall not affect its
interpretation.
6. Laws of the State of New York. This Note shall be deemed to be made,
executed and delivered in, governed by and interpreted under and construed
in all respects in accordance with the laws of the State of New York,
irrespective of the place of domicile or residence of the Maker or the
Holder. In the event of controversy arising out of the interpretation,
construction, performance or breach of this Note, the Maker and the Holder
hereby agree and consent that the same shall be settled by arbitration in
accordance with the provisions of Section 7.7 of the written loan agreement
of even date herewith between the Maker and the Holder to which this Note
is attached as an exhibit.
Bodyguard Xxxxxxx.xxx, Inc.
By: ---------------------
Xxxx Xxxxx, President
