LOAN AGREEMENT
Exhibit 10.1
This Loan Agreement (this "Agreement"), is made and entered as of
_______, 2016, by and between Smart Server, Inc., a
Nevada corporation doing business as XXXX.xxx (the
"Company"), and _____________________
("Lender").
WHEREAS, the Company intends to issue shares of
the Company's common stock, par value $0.001 per share (the
"Common
Stock"), to Lender pursuant to
that certain Subscription Agreement of the Company dated as of even
date herewith (the "Subscription
Agreement");
and
WHEREAS, following the date hereof, the Company
may desire to borrow the Loan Amount (as defined herein) from
Lender (the "Loan"); and
WHEREAS,
Lender desires to commit to making the Loan to the Company pursuant
to the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual and
dependent covenants hereinafter set forth, the parties agree as
follows:
(a) Right
to Borrow. Subject to the terms
and conditions of this Agreement, at any time on or after January
31, 2017 (the "Commencement
Date"), and before November 1,
2020, the Company shall have the right (the "Loan Right"), but not the obligation, to cause Lender to
provide to the Company an amount equal to (i) One Million Three
Hundred Fifty Thousand Dollars ($1,350,000.00), multiplied by
(ii) a fraction, (y) the numerator of
which is the number of shares of Common Stock acquired by Lender
under the Subscription Agreement and (z) the denominator of which
is the total number of shares of Common Stock sold in the offering
contemplated by the Subscription Agreement (the
"Loan
Amount"). The Loan Amount is
set forth on Schedule 1(a)
attached hereto.
(b) Obligations
of Lender. Lender acknowledges
and agrees that he or it, as applicable, shall lend the Loan Amount
to the Company in accordance with the terms of this
Agreement.
(c) Procedures.
(i) If
the Company desires to exercise the Loan Right, the Company shall
deliver to Lender a written notice (the "Loan Exercise
Notice") exercising the
Company's right to cause Lender to provide the
Loan.
(ii) The
Loan Amount shall be delivered by Lender to the Company, in full,
no later than 30 days following receipt by Lender of the Loan
Exercise Notice.
(d) Closing.
At the closing of the Loan pursuant to this Section 1, the Company shall deliver to Lender a
convertible promissory note substantially in form attached hereto
as Exhibit A
(the "Note"), which Note shall be in the principal amount
equal to the Loan Amount.
2. Repayment
of the Loan.
In the event the Company exercises the
Loan Right hereunder, the Company shall have obligation to repay to
Lender the Loan Amount provided by in accordance with the terms of
the Note. Lender each acknowledges and agrees that, except as
provided in the Note issued to Lender, the Company shall have no
obligation of any kind to pay any amounts or other consideration to
Lender in connection with the Loan.
3. Notices.
All notices, requests, consents, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to
have been given (a) when delivered by hand (with written
confirmation of receipt); (b) when received by the addressee if
sent by a nationally recognized overnight courier (receipt
requested); (c) on the date sent by facsimile or e-mail of a PDF
document (with confirmation of transmission) if sent during normal
business hours of the recipient, and on the next Business Day if
sent after normal business hours of the recipient; or (d) on the
third day after the date mailed, by certified or registered mail,
return receipt requested, postage prepaid. Such communications must
be sent to the respective parties at the addresses indicated below
(or at such other address for a party as shall be specified in a
notice given in accordance with this Section 3).
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If to the Company:
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(d/b/a XXXX.xxx)
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 28211Attention: Chief Executive
Officer
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If to Lender:
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4. Entire
Agreement. This Agreement
constitutes the sole and entire agreement of the parties to this
Agreement with respect to the subject matter contained herein, and
supersedes all prior and contemporaneous understandings and
agreements, both written and oral, with respect to such subject
matter.
5. Successor
and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
However, neither this Agreement nor any of the rights of the
parties hereunder may otherwise be transferred or assigned by any
party hereto, except that (a) if the Company shall merge or
consolidate with or into, or sell or otherwise transfer
substantially all its assets to, another company which assumes the
Company's obligations under this Agreement, the Company may assign
its rights hereunder to that company. Any attempted transfer or
assignment in violation of this Section 5 shall be void.
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6. No
Third-Party Beneficiaries. This
Agreement is for the sole benefit of the parties hereto and their
respective successors and permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other
person any legal or equitable right, benefit or remedy of any
nature whatsoever, under or by reason of this
Agreement.
7. Headings.
The headings in this Agreement are for reference only and shall not
affect the interpretation of this Agreement.
8. Amendment
and Modification; Waiver. This
Agreement may only be amended, modified or supplemented by an
agreement in writing signed by each party hereto. No waiver by any
party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and signed by the party so waiving.
Except as otherwise set forth in this Agreement, no failure to
exercise, or delay in exercising, any rights, remedy, power or
privilege arising from this Agreement shall operate or be construed
as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
9. Severability.
If any term or provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of
this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction. Upon such determination that
any term or other provision is invalid, illegal or unenforceable,
the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that
the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
10. Governing
Law; Submission to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
Nevada without giving effect to any choice or conflict of law
provision or rule (whether of the State of Nevada or any other
jurisdiction) that would cause the application of Laws of any
jurisdiction other than those of the State of Nevada. Any legal
suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby may be instituted
in the federal courts of the United States of America or the courts
of the State of North Carolina in each case located in the city of
Charlotte and County of Mecklenburg, and each party irrevocably
submits to the exclusive jurisdiction of such courts in any such
suit, action or proceeding. Service of process, summons, notice or
other document by mail to such party's address set forth herein
shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any
suit, action or any proceeding in such courts and irrevocably waive
and agree not to plead or claim in any such court that any such
suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
11. Waiver
of Jury Trial. Each party
irrevocably and unconditionally waives any right it may have to a
trial by jury in respect of any legal action arising out of or
relating to this Agreement or the transactions contemplated hereby.
Each party to this Agreement certifies and acknowledges that (a) no
representative of any other party has represented, expressly or
otherwise, that such other party would not seek to enforce the
foregoing waiver in the event of a legal action; (b) such party has
considered the implications of this waiver; (c) such party makes
this waiver voluntarily; and (d) such party has been induced to
enter into this Agreement by, among other things, the mutual
waivers and certifications in this Section 11.
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12. Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which shall together be deemed to
be one and the same agreement. A signed copy of this Agreement
delivered by facsimile, e-mail or other means of electronic
transmission shall be deemed to have the same legal effect as
delivery of an original signed copy of this
Agreement.
13. No
Strict Construction. The
parties to this Agreement have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties,
and no presumption or burden of proof will arise favoring or
disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
[SIGNATURE PAGE
FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have executed this Loan
Agreement on the date first written above.
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COMPANY:
a Nevada corporation doing business as XXXX.xxx
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By:_____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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LENDER:
By:_____________________________
Name:
Title:
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SCHEDULE 1(a)
ALLOCATION
OF LOAN AMOUNT OBLIGATION
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LENDER
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PERCENTAGE OF SHARES ACQUIRED IN OFFERING
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LOAN AMOUNT
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EXHIBIT A
FORM
OF NOTE
