EHIBIT 10.23
SUBORDINATED LOAN AGREEMENT
SUBORDINATED LOAN AGREEMENT made as of the 4th day of June, 1999 by and between
CONTINENTAL HERITAGE CORPORATION, a Delaware corporation (the "Company"), whose
address is 0000 X. Xxxx Xxxx Xxxx., Xxx Xxxxx, Xxxxxx 00000 and AWC, INC.
RETIREMENT TRUST ("Lender"), whose address is 0000 X. Xxxxxxx Xxxxxxxxx, XXX
000, Xxx Xxxxx, Xxxxxx 00000.
RECITALS
A. The Company proposes to engage in the business of distributing
nutri-ceutical and homeopathic products and has entered into a Loan Agreement
dated as of February 9, 1999 ("Loan Agreement") with a group of investors who
have agreed to make an initial loan to the Company of the sum of One Million
Dollars ($1,000,000) under and pursuant to the terms of a Loan Agreement.
B. Under the terms of the Loan Agreement, the Company is permitted to borrow
from the Lender the sum of One Hundred Thousand Dollars ($100,000) upon the
terms hereinafter set forth and Lender has agreed to lend to the Company the
sum of One Hundred Thousand Dollars ($100,000) upon the terms set forth below.
NOW THEREFORE, in consideration of the premises and mutual covenants,
conditions and agreements herein contained, the parties hereto each intending
to be legally bound agree as follows:
1. Loan of $100,000. (a) The Lender hereby lends to the Company and the
Company hereby borrows from the Lender the sum of One Hundred Thousand Dollars
($100,000) (the "Loan"), the proceeds of which loan will be used by the
Company, together with the funds provided by the investors referred to above to
enable the Company to commence its business activities as above stated.
(b) The Loan shall be evidenced by the Company's Subordinated Promissory Note
in the principal amount of One Hundred Thousand Dollars ($100,000) (the "Note")
in the form attached hereto as Exhibit A, which Note shall be executed and
delivered by the Company to the Lender upon the Lender advancing to the Company
the sum of One Hundred Thousand Dollars ($100,000).
2. Class A Warrants. (a) As additional consideration to the Lender for making
the Loan the Company shall issue and deliver to the Lender one of its Class A
Warrants, pursuant to which the Lender will be entitled to purchase two hundred
thousand (200,000) shares of the Company's Common Stock, Ten Cents ($.10) par
value, at a purchase price of $.3125 per share, upon the terms and conditions
set forth in the Class A Warrant, a copy of which is attached to this
Subordinated Loan Agreement as Exhibit B.
(b) The Lender acknowledges that he has been advised by the Company that the
Class A Warrant which he is entitled to receive to purchase two hundred
thousand (200,000) shares of the Company's Common Stock is one of a series of
Class A Warrants which the Company has issued or will issue to the investors
and two other persons entitling the holders thereof, including the Lender, to
purchase in aggregate two million seven hundred seventy-five thousand two
hundred fifty (2,775,250) shares of the Company's common stock.
3. Documents Delivered to Investors. The Lender acknowledges that he has
received from the Company copies of the following reports or documents ("SEC
Reports") filed by the Company with the Securities and Exchange Commission
pursuant to the provisions of the Securities Exchange Act of 1934, as amended:
(i) Annual Report on Form 10-K for the three fiscal years ended October 31,
1997; (ii) Current Report on Form 8-K dated September 3, 1998; (iii) Quarterly
Report on Form 10-Q for the quarterly period ended January 31, 1998; (iv)
Quarterly Report on Form 10-Q for the quarterly period ended April 30, 1998;
(v) Quarterly Report on Form 10-Q for the quarterly period ended July 31, 1998;
(vi) Information Statement pursuant to Section 14 (f) of the Securities
Exchange Act of 1934 and Rule 14 (f)-1 thereunder; (vii) Current Report on Form
8-K dated December 7, 1998 and amendment thereto dated January 22, 1999; and
(viii) Current Report on Form 8-K dated January 22, 1999. In addition, Lender
h as received a copy of a Business plan of VisionQuest Worldwide, Inc., a
wholly owned subsidiary of the Company.
4. Representations and Warranties of the Lender. The Lender hereby represents
and warrants to the Company as follows:
(a) He has received and carefully reviewed the SEC reports and documents
referred to in Section 3 hereof.
(b) He has had reasonable opportunity to ask questions of and receive answers
from the management of the Company concerning the Company, its proposed
business and the Loan, and all such questions, if any, have been answered to
the full satisfaction of such Investor.
(c) He has such knowledge and expertise in financial and business matters that
he is capable of evaluating the merits and risks involved in an investment in
the Note, the Class A Warrants and the Warrant Shares, as such latter term is
defined in the Class A Warrants.
(d) Acknowledges that the Company has determined that the exemption from the
registration provisions of the Securities Act of 1933, as amended, ("Securities
Act") for the issue of the Note, the Class A Warrants and the Warrant Shares
upon exercise of the Class A Warrants is based upon, in part, the
representations, warranties and agreements made by each Investor herein.
(e) Except as set forth in the documents described in Section 3 hereof, no
representations or warranties have been made to Lender by the Company or any
agent, employee or affiliate of the Company and in entering into this
Subordinated Loan Agreement, he acknowledges that he has not relied on any
information, other than that contained in the documents delivered to him or it
by the Company and the results of independent investigations, if any, made by
him.
(f) He understands that the Note, the Class A Warrants and the Warrant Shares
have not been registered under the Securities Act or the Securities Laws of any
state, based upon an exemption from such registration requirements for
non-public offerings to "Accredited Investors."
(g) That he or it has been advised that:
(i) The Note, the Class Warrants and the Warrant Shares are "Restricted
Securities" as said term is defined in Rule 144 of the Rules of Regulations
promulgated under the Securities Act;
(ii) The Note, the Class A Warrants and the Warrant Shares may not be sold
or otherwise transferred unless they have first been registered under the
Securities Act and all applicable State Securities Laws, unless exemption from
such registration provisions are available with respect to said resale or
transfer;
(iii) Other than as set forth in the Class A Warrants, the Company is under
no obligation to register the Class A Warrants or the Warrant Shares under the
Securities Act or any State Securities Laws or to take any action to make an
exemption from such registration provisions available;
(iv) The Class A Warrants and the certificates that will evidence the
Warrant Shares will bear a legend to the effect that the transfer of the same
is subject to the provisions hereof; and
(v) Stop transfer instructions will be placed with the transfer agent for
the Common Stock of the Company.
(h) He is acquiring the Note, the Class A Warrants and any Warrant Shares
solely for his own account, for investment purposes only and not with a view
towards the resale or distribution thereof.
(i) He will not sell or otherwise transfer his interest in the Note, the Class
A Warrant or the Warrant Shares or any interest therein, unless and until such
securities have first been registered under the Securities Act and all
applicable State Securities Laws; or he shall have first delivered to the
Company a written opinion of counsel (which counsel and opinion, in form and
substance, shall be reasonably satisfactory to counsel to the Company) to the
effect that the proposed sale or transfer is exempt from the registration
provisions of the Act and all applicable State Securities Laws.
(j) He has full power and authority to execute and deliver this Loan Agreement
and to perform his respective obligations hereunder.
(k) He confirms to the Company that he is an Accredited Investor within one of
the following two definitions and shall indicate at the end of the Loan
Agreement in which category he is:
(i) a natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of this Loan Agreement exceeds $1,000,000; or
(ii) a natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with his spouse in excess
of $300,000 in each of those years and has reasonable expectation of reaching
the same income level in the current year; or
5. Representations and Warranties of the Company. The Company hereby warrants
and represents to the Lender that:
(a) The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and it is duly qualified as a
foreign corporation and in good standing under the laws of each other
jurisdiction where it owns property or where the nature of its business
requires it to be qualified to do business. The Company has full corporate
power and authority to own, lease and operate its properties and assets and to
conduct its business as now being conducted.
(b) The Company has an authorized capitalization consisting of ten million
(10,000,000) shares of Common Stock, Ten Cents ($.10) par value, and two
million (2,000,000) shares of "Blank Check" Preferred Stock, Fifty Cents ($.50)
par value. As of the date of this Subordinated Loan Agreement, there are
issued and outstanding six million nine hundred twenty-eight thousand eight
hundred sixty (6,928,860) shares of such Common Stock and no shares of
Preferred Stock. All of the outstanding shares of capital stock of the Company
have been duly authorized, validly issued and are fully paid and
non-assessable. Other than two million (2,000,000) shares of Common Stock that
may be issued to certain shareholders of the Company dependent upon future
sales of the Company made during the twelve (12) month periods commencing March
1, 1999 and March 1, 2000, respectively, or shares of Common Stock that may be
issued upon exercise of the Class A Warrants or the Class B or Class C Warrants
that may be issued under the terms of the Loan Agreement, there are no rights,
subscriptions, warrants, calls, unsatisfied preemptive rights, options or other
agreement of any kind to purchase or otherwise receive from the Company any of
its authorized but unissued shares of capital stock or any other securities of
the Company and no securities or obligations of any kind convertible into such
capital stock exist in favor of any person, firm or corporation.
(c) (i) Each of the financial statements of the Company and Encore
International, Inc., including the footnotes thereto, included in the SEC
Reports ("Financial Statements") delivered to the Lender have been prepared in
conformity with generally accepted accounting principles and fairly present the
financial conditions and results of operations of the Company and Encore
International, Inc. as of the respective dates of such Financial Statements and
for the fiscal periods then ended.
(ii) Since October 31, 1998 there has been no material adverse change in
the assets, properties or financial condition of the Company or any of its
subsidiaries.
(d) All documents, Exhibits and other materials delivered or to be delivered
by or on behalf of the Company to the Lender in connection with this
Subordinated Loan Agreement and the transactions contemplated hereby are to the
best of the Company's knowledge true and complete. The information furnished
by or on behalf of the Company in connection with this Subordinated Loan
Agreement and the transactions contemplated hereby does not, to the best of the
Company's knowledge, contain any untrue statement of a material fact and does
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not false or misleading.
6. Subordination. The Loan and the indebtedness evidenced by the Note and the
payment of the principal of and interest on the Note is expressly subordinated,
to the extent and in the manner set forth in the Note, in right of payment to
the prior payment in full of the interest and principal of a certain Promissory
Note of the Company dated February 12, 1999 issued under the Loan Agreement
and payable to Xxxxxx Xxxxxxx, as Disbursement Agent, for Xxxxx Xxxx, Xxxxxxx
X. Xxxxxx, Case Holdings, Inc., Xxxxx Xxxxxxx, Xx., Xxxxx Xxxxxxx, Xx., Xxxxxx
Xxxxx and Xxxxxx X. Xxxxxxx, as Payees. By reason of such subordination, the
Lender also acknowledges and agrees that no payment of principal or interest
may be made on the Note unless at such time all payments of principal and
interest then due on the Promissory Note have at the time been paid.
7. Key Man Insurance. Under the terms of the Loan Agreement, the Company is
obligated to maintain a "Key Man" life insurance policy issued by an A-rated
insurance company on the life of Xxxxx Xxxxx, President of the Company, in the
amount of Two Million Dollars ($2,000,000) with the beneficiaries of such
insurance policy being the Investors who have loaned the Company the sum of
One Million Dollars ($1,000,000) pursuant to the terms of the Loan Agreement.
The Company agrees to add the Lender as an additional beneficiary for such Key
Man life insurance and to continue maintenance of such Key Man life insurance
until the Note executed and delivered by the Company to the Lender has been
paid in full. Any payments out of the proceeds of such policy on account of the
Note are subject to the subordination provisions set forth in Section 6 of
this Subordinated Loan Agreement and in the Note.
8. Miscellaneous.
(a) All notices or other communications required or permitted by this
Agreement shall be sufficiently given if in writing and only delivered
(personally, by courier service such as Federal Express or by other messenger)
or mailed by registered or certified mail, return receipt requested, to The
Company and to the Lender at their respective addresses set forth above, or to
such other address as hereafter shall be furnished as provided in this Section
8(a) by any of the parties hereto to the other party hereto.
(b) Each party will pay its or his own expenses with respect to the
preparation of this Agreement and the documents attendant thereto.
(c) This Agreement shall not be assignable by any party, and shall not be
altered or otherwise amended except pursuant to a writing executed by all of
the parties hereto.
(d) If any provision of this Agreement, or the application of any such
provision to any person or circumstance, shall be held invalid by a court of
competent jurisdiction, the remainder of this Agreement, or the application of
such provision to persons or circumstances other than those as to which it is
held invalid, shall not be affected thereby.
(e) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute a
single instrument. It shall not be necessary that any counterpart be signed by
all of the parties hereto.
(f) All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the
person or persons or entity or entities may require.
(g) Neither the failure nor any delay on the part of either party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
(h) This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation,
provisions concerning limitations of actions), shall be governed by and
construed in accordance with the laws of the State of Delaware, notwithstanding
any conflict-of-laws doctrines of such state or other jurisdiction to the
contrary, and without the aid of any canon, custom or rule of law requiring
construction against the draftsman. At the direction of Investors, the Courts
of the State of Delaware or Florida or of the United States District Court in
either such state shall be competent Courts to adjudicate any disputes arising
out of this Agreement and the parties hereto submit to the personal
jurisdiction of each of such Courts and waive all rights to waive jurisdiction.
(i) This Agreement contains the entire Agreement and understanding of the
parties with respect to the subject matter hereof, and no variations hereof or
alterations or amendments to this Agreement shall be binding unless made in
writing and signed by all of the parties.
(j) All Exhibits and Schedules attached hereto are incorporated by reference
into, and made a part of, this Agreement.
(k) The Section headings are for convenience only; they form no part of this
Agreement and shall not affect its interpretation.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the
date first written above.
LENDER:
AWC, INC. RETIREMENT TRUST
_______________________________
By: Xxxx X. Xxxx
Its: Trustee
BORROWER:
CONTINENTAL HERITAGE CORPORATION
By: Xxxxx Xxxxx
Its: President
EXHIBIT A
SUBORDINATED PROMISSORY NOTE
$100,000 February __, 1999
FOR VALUE RECEIVED, Continental Heritage Corporation, a Delaware corporation,
having its principal business office at 0000 Xxxxxxx'x Xxx Xxxxxx, Xxx Xxxxx,
XX 00000 ("Maker"), promises to pay the order of Xxxx Xxxx ("Payee"), the
principal sum of One Hundred Thousand Dollars ($100,000) lawful money of the
United States of America, or so much of that sum as may be advanced under this
Note, together with interest at the annual rate of ten percent (10%) per annum
from the date or dates of disbursement of the outstanding balance thereof, on
the terms set forth herein, as follows:
1. This Note has been issued by Maker pursuant to the terms and provisions of
a certain Subordinated Loan Agreement ("Subordinated Loan Agreement") dated
February ___, 1999 between Maker and Payee.
2. (a) Subject to the terms of the Subordinated Loan Agreement, interest
shall accrue, in arrears, without setoff or deduction, from the date hereof and
continuing until the Maturity Date (as hereinafter defined). Payment of
accrued interest prior to the Maturity Date, as defined below, shall be made on
the last day of each month commencing with the month of September, 1999 and on
the Maturity Date.
(b) Commencing on the last day of March, 2000, and on the last day of each
month thereafter to and including the Maturity Date, Maker shall make six (6)
consecutive principal payments of Sixteen Thousand Six Hundred Sixty Six
Dollars and 67/100 ($16,666.67), each of which principal payments shall be
accompanied by a payment of interest as provided in Section 2(a) above on the
unpaid principal balance of this Note at the rate provided.
(c) The entire unpaid principal balance of this Note and all interest accrued
thereon but not previously paid and all other sums payable hereunder, shall be
due and payable in full on August 31, 2000 (the "Maturity Date").
3. The principal and interest shall be payable to the Payee at his address
set forth above, or at such other place as Payee from time to time, may
designate in writing.
4. Maker shall have the privilege of prepaying this Note in full but not in
part without penalty, at any time, provided not less than twenty (20) days
written notice of such election is given by Maker to the Payees.
5. It is further understood, however, that should any default be made in the
payment of any installment of principal and interest or any other payment due
under this Note on the date such payment is due, then the Payee, at his option
and without notice to Maker unless expressly required elsewhere in this Note or
the Subordinated Loan Agreement, may declare due and payable immediately the
entire unpaid balance of principal and all other sums due by Maker under this
Note, with interest accrued on it at the applicable rate specified above to the
date of default and after that date at a "default rate" which shall be highest
rate of interest permitted under the laws of Nevada, notwithstanding anything
to the contrary in this Note or in the Loan Agreement; and payment may be
enforced and recovered in whole or in part at any time by one or more of the
remedies provided to Payee in this Note. In such a case Payee may also recover
all costs of suit and other expenses in connection with it, t together with
reasonable attorneys' fees for collection, together with interest on any
judgment obtained by Payees at the default rate (defined above), including
interest at the default rate from and after the date of any execution, judicial
or foreclosure sale until actual payment is made to Payees of the full amount
due Payees.
6. The Payee shall not exercise any right or remedy provided for herein
because of any default of Maker unless Maker shall have failed to pay the
outstanding sums within a period of five (5) business days after the date of
the notice of default has been given by the Payee; provided, however, Payee
shall not be required to give any such notice or to allow any part of the grace
period if Maker shall have filed a petition in bankruptcy or reorganization or
a xxxx in equity or otherwise initiated proceedings for the appointment of a
receiver of its assets, or if Maker shall have made an assignment for the
benefit of creditors, or if a receiver or trustee is appointed for Maker and
such appointment or such receivership is not terminated within thirty (30)
days.
7. Payees failure to exercise his option to accelerate the indebtedness
evidenced by this Note shall not constitute a waiver of the right to exercise
that option at any other time so long as that event of default remains
outstanding and uncured, or to exercise it upon the occurrence of another
default.
8. The remedies of Payee as provided in this Note shall be cumulative and
concurrent; may be pursued singly, successively, or together at the sole
discretion of Payee, may be exercised as often as occasion for their exercise
shall occur; and in no event shall the failure to exercise any such right or
remedy be construed as a waiver or release of it.
9. Maker waives presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this note, and all
other notices in connection with the delivery, acceptance, performance,
default, or enforcement of the payment of this Note, and it agrees that its
liability shall be unconditional, without regard to the liability of any other
party, and shall not be affected in any manner by any indulgence, extension of
time, renewal, waiver, or modification granted or consented to by Payees.
10. If any provision of this Note is held to be invalid or unenforceable by a
Court of competent jurisdiction, the other provisions of this Note shall remain
in full force and effect and shall be construed liberally in favor of Payees in
order to effectuate the provisions of this Note. In no event shall the rate of
interest payable under this Note exceed the maximum rate of interest permitted
to be charged by the laws of Nevada (including the choice of law rules) and any
interest paid in excess of the permitted rate shall be refunded to Maker. That
refund shall be made by application of the excessive amount of interest paid
against any sums outstanding and shall be applied in such order as Payee may
determine. If the excessive amount of interest paid exceeds the sums the
outstanding, the portion exceeding the sums outstanding shall be refunded in
cash by Payee. Any crediting or refund shall not cure or waive any default by
Maker under this Note. Maker agrees, however, that in determining whether or
not any interest payable under this Note exceeds the highest rate permitted by
law, any non-principal payment including, without limitation, prepayment fees
and late charges shall be deemed, to the extent permitted by law, to be an
expense, fee, premium or penalty rather than interest.
11. Payee shall not be deemed, by any act or omission or commission, to have
waived any of their rights or remedies under this Note unless the waiver is in
writing and signed by Payee, and then only to the extent specifically set forth
in the writing. A waiver on one event shall not be construed as continuing or
as a bar to or waiver of any right or remedy to a subsequent event.
12. This instrument shall be governed by and construed according to the laws
of the State of Nevada.
13. The Payee, by his acceptance of this Subordinated Promissory Note and in
accordance with the provisions of the Subordinated Loan Agreement, agrees that
the indebtedness evidenced by this Note and the payment of the principal and
interest on this Note is expressly subordinated, to the extent and in the
manner hereinafter set forth in right of payment to the prior payment in full
of the interest and principal of a certain Promissory Note of the Maker dated
February 12, 1999 payable to Xxxxxx Xxxxxxx, as Disbursement Agent, for Xxxxx
Xxxx, Xxxxxxx X. Xxxxxx, Case Holdings, Inc., Xxxxx Xxxxxxx, Xx., Xxxxx
Xxxxxxx, Xx., Xxxxxx Xxxxx and Xxxxxx X. Xxxxxxx as Payees. By reason of such
subordination, the Payee acknowledges and agrees that no payment of principal
or interest may be made on this Note unless at such time all payments of
principal and interest then due on the Promissory Note has at the time been
paid.
14. All payments under this Note shall be made in such coin or currency of the
United States of America as at the time of payment shall be legal tender for
the payment of public or private debts.
15. Time is of the essence as to each provision of this Note which requires
Maker to take any action within a specified time period.
MAKER AND PAYEES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED
HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, VERBAL OR WRITTEN STATEMENTS OR ACTIONS OF EITHER
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR PAYEES TO MAKE THE
LOAN EVIDENCED BY THIS NOTE.
IN WITNESS WHEREOF, Maker, intending to be legally bound, has duly executed
and delivered this Note.
CONTINENTAL HERITAGE CORPORATION
By:
Xxxxx Xxxxx, President
