PROMISSORY NOTE AND LOAN AGREEMENT November 8, 2007
Exhibit
10.5
November
8, 2007
$50,000
FOR
VALUE RECEIVED, the undersigned, Planetlink Communications,
Inc., a Delaware corporation (the “Company”), promises to pay
Xxxx X. Xxxxx (the “Lender”), the principal sum of
Fifty Thousand Dollars
($50,000) and interest at the annual
rate of fifteen percent (15%) on the unpaid balance pursuant to the following
terms:
1. Principal
and Interest. For value received, the
Company hereby promises to pay to the order of the Lender on the date six (6)
months from the date hereof, in lawful money of the United States of
America and in immediately available funds the principal sum of Fifty Thousand
Dollars ($50,000), together with interest on the unpaid principal of this note
at the rate of fifteen percent (15%) per year (computed on the basis of a
365-day year and the actual days elapsed) from the date of this Promissory
Note
(the “Note”) until paid.
2. Right
of Prepayment. The Company at its option shall have the right to
prepay, with three (3) business days advance written notice, a portion or all
outstanding principal of the Note.
3. Waiver
and Consent. To the fullest extent permitted by law and
except as otherwise provided herein, the Company waives demand, presentment,
protest, notice of dishonor, suit against or joinder of any other person, and
all other requirements necessary to charge or hold the Company liable with
respect to this Note.
4. Costs,
Indemnities and Expenses. In the event of default as
described herein, the Company agrees to pay all reasonable fees and costs
incurred by the Lender in collecting or securing or attempting to collect or
secure this Note, including reasonable attorneys’ fees and expenses, whether or
not involving litigation, collecting upon any judgments and/or appellate or
bankruptcy proceedings. The Company agrees to pay any documentary
stamp taxes, intangible taxes or other taxes which may now or hereafter apply
to
this Note or any payment made in respect of this Note, and the Company agrees
to
indemnify and hold the Lender harmless from and against any liability, costs,
attorneys’ fees, penalties, interest or expenses relating to any such taxes, as
and when the same may be incurred.
5. Event
of Default. An “Event of Default” shall be deemed
to have occurred upon the occurrence of any of the following: (i) the Company
should fail for any reason or for no reason to make any payment of the
principal, interest, costs, indemnities, or expenses pursuant to this Note
within fifteen (15) days of the date due as prescribed herein; (ii) failure
by
the Company for twenty (20) days after notice to it to satisfy any of its other
obligations or requirements or comply with any of its other agreements under
this Note; (iii) any proceedings under any bankruptcy laws of the United States
of America or under any insolvency, not disclosed to the Lender, reorganization,
receivership, readjustment of debt, dissolution, liquidation or any similar
law
or statute of any jurisdiction now or hereinafter in effect (whether in law
or
at equity) is filed by or against the Company or for all or any part of its
property. Upon an Event of Default (as defined above), the entire
principal balance and accrued interest outstanding under this Note, and all
other obligations of the Company under this Note, shall be immediately due
and
payable without any action on the part of the Lender, interest shall accrue
on
the unpaid principal balance at eighteen percent (18%) per year or the highest
rate permitted by applicable law, if lower and the Lender shall be entitled
to
seek and institute any and all remedies available to it. The company
shall immediately upon default issue freely tradeable common stock to lender
or
preferred stock if lender agrees, at the lenders request, equivalent to
principal plus interest outstanding at a 50% discount to the lowest closing
bid
price in the past twenty days.
6. Maximum
Interest Rate. In no event shall any agreed to or actual
interest charged, reserved or taken by the Lender as consideration for this
Note
exceed the limits imposed by California law. In the event that the
interest provisions of this Note shall result at any time or for any reason
in
an effective rate of interest that exceeds the maximum interest rate permitted
by applicable law, then without further agreement or notice the obligation
to be
fulfilled shall be automatically reduced to such limit and all sums received
by
the Lender in excess of those lawfully collectible as interest shall be applied
against the principal of this Note immediately upon the Lender’s receipt
thereof, with the same force and effect as though the Company had specifically
designated such extra sums to be so applied to principal and the Lender had
agreed to accept such extra payment(s) as a premium-free prepayment or
prepayments.
7. Cancellation
of Note. Upon the repayment by the Company of all of its
obligations hereunder to the Lender, including, without limitation, the
principal amount of this Note, plus accrued but unpaid interest, the
indebtedness evidenced hereby shall be deemed canceled and paid in
full. Except as otherwise required by law or by the provisions of
this Note, payments received by the Lender hereunder shall be applied first
against expenses and indemnities, next against interest accrued on this Note,
and next in reduction of the outstanding principal balance of this
Note.
8. Severability. If
any provision of this Note is, for any reason, invalid or unenforceable, the
remaining provisions of this Note will nevertheless be valid and enforceable
and
will remain in full force and effect. Any provision of this Note that
is held invalid or unenforceable by a court of competent jurisdiction will
be
deemed modified to the extent necessary to make it valid and enforceable and
as
so modified will remain in full force and effect.
9. Amendment
and Waiver. This Note may be amended,
or any provision of this Note may be waived, provided that any such amendment
or
waiver will be binding on a party hereto only if such amendment or waiver is
set
forth in a writing executed by the parties hereto. The waiver by any
such party hereto of a breach of any provision of this Note shall not operate
or
be construed as a waiver of any other breach.
10.
Successors. Except as
otherwise provided herein, this Note shall bind and inure to the benefit of
and
be enforceable by the parties hereto and their permitted successors and
assigns.
11. Assignment. This
Note shall not be directly or indirectly assignable or delegable by the Company
or the Lender.
12. No
Strict Construction. The language used
in this Note will be deemed to be the language chosen by the parties hereto
to
express their mutual intent, and no rule of strict construction will be applied
against any party.
13. Further
Assurances. Each party hereto will
execute all documents and take such other actions as the other party may
reasonably request in order to consummate the transactions provided for herein
and to accomplish the purposes of this Note.
14. Notices,
Consents, etc. Any notices, consents, waivers or other
communications required or permitted to be given under the terms hereof must
be
in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1) trading
day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
|
If
to Company:
|
Planetlink
Communications, Inc.
|
|
000
Xxxxxxxx Xxxxxx, 0xx
Xxxxx
|
|
|
Xxxx
Xxxx, XX 00000
|
|
|
Telephone:
|
|
|
Facsimile:
|
|
|
If
to the Lender:
|
Xxxx
X. Xxxxx
|
|
000
Xxxxxx Xxxx
|
|
|
Xxxxxxxx,
Xxx Xxxx 00000
|
|
|
Telephone:
|
|
|
Facsimile:
|
or
at
such other address and/or facsimile number and/or to the attention of such
other
person as the recipient party has specified by written notice given to each
other party three (3) trading days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
15. Governing
Law; Jurisdiction. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of California, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the
State of California or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of
California. Each party hereby irrevocably submits to the exclusive
jurisdiction of the Superior Court of the State of California for the
adjudication of any dispute hereunder or in connection herewith or therewith,
or
with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.
16. No
Inconsistent Agreements. None of the
parties hereto will hereafter enter into any agreement, which is inconsistent
with the rights granted to the parties in this Note.
17. Third
Parties. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any person
or entity, other than the parties to this Note and their respective permitted
successor and assigns, any rights or remedies under or by reason of this
Note.
18. Entire
Agreement. This Note (including any recitals hereto) set
forth the entire understanding of the parties with respect to the subject matter
hereof, and shall not be modified or affected by any offer, proposal, statement
or representation, oral or written, made by or for any party in connection
with
the negotiation of the terms hereof, and may be modified only by instruments
signed by all of the parties hereto.
[REMAINDER
OF PAGE INTENTIONALY LEFT BLANK]
IN
WITNESS WHEREOF, this Promissory Note is executed by the undersigned as
of the date hereof.
|
Plugin
Stores Inc.:
|
||
|
By:
|
|
|
|
Name: Xxxxxx
Xxxx
|
||
|
Its: President
|
||
|
Xxxx
Xxxxx:
|
||
|
|
||
5
