EXHIBIT 10.25
SUBORDINATED LOAN AGREEMENT
SUBORDINATED LOAN AGREEMENT made as of the 24th day of September, 1999 by and
between VISIONQUEST WORLDWIDE HOLDINGS CORPORATION, a Delaware corporation (the
"Company"), whose address is 0000 X. Xxxx Xxxx Xxxx., Xxxxx 000, Xxx Xxxxx,
Xxxxxx 00000 and XXXX XXXXXX ("Lender"), whose address is 0000 Xxxxx Xxxxxx
Xxxxx, Xxxx Xxxxx, Xxxxx 00000.
RECITAL
The Company desires to borrow from the Lender the sum of Fifty Thousand Dollars
($50,000) upon the terms hereinafter set forth and Lender has agreed to lend to
the Company the sum of Fifty Thousand Dollars ($50,000) 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 $50,000. (a) The Lender hereby lends to the Company and the Company
hereby borrows from the Lender the sum of Fifty Thousand Dollars ($50,000) (the
"Loan"), the proceeds of which loan will be used by the Company to conduct its
business activities.
(b) The Loan shall be evidenced by the Company's Subordinated Promissory Note
in the principal amount of Fifty Thousand Dollars ($50,000) (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 Fifty Thousand Dollars ($50,000).
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 one hundred
thousand (100,000) shares of the Company's Common Stock, 1/10th Cent (.001) par
value, at a purchase price of $.50 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 one hundred
thousand (100,000) 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 persons who have
made loans to the Company entitling the holders thereof, including the Lender,
to purchase in aggregate three million eight hundred seventy-five thousand two
hundred fifty (3,875,250) 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-KSB for the fiscal year ended October 31, 1998;
(ii) Information Statement pursuant to Section 14 (f) of the Securities
Exchange Act of 1934 and Rule 14 (f)-1 thereunder; (iii) Current Report on Form
8-K dated December 7, 1998 and amendment thereto dated January 22, 1999; (iv)
Current Report on Form 8-K dated January 22, 1999; (v) Quarterly Report on Form
10-QSB for the quarterly period ended January 31, 1999; (vi) Quarterly Report
on Form 10-QSB for the quarterly period ended April 30, 1999; (vii) Current
Report on Form 8-K dated September 3, 1998; (viii) Current Report on Form 8-K
dated November 27, 1998; Current Report on Form 8-K dated January 15, 1999; and
(ix) Current Report on Form 8-K dated August 5, 1999. In addition, Lender has
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 $300,000 in each of those years and has reasonable expectation of reaching
the same income level in the current year; or
5. Representations and Warranties of the Company. The Company hereby warrants
and represents to the Lender that:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and it is duly qualified
as a foreign corporation and in good standing under the laws of each other
jurisdiction where it owns property or where the nature of its business
requires it to be qualified to do business. The Company has full corporate
power and authority to own, lease and operate its properties and assets and to
conduct its business as now being conducted.
(b) The Company has an authorized capitalization consisting of one hundred
fifty million (150,000,000) shares of Common Stock, 1/10th Cent ($.001) 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 July 1, 1999 and July 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 a certain
Loan Agreement dated February 9, 1999 (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 certain Promissory
Notes of the Company aggregating one million five hundred thousand dollars
$1,500,000 in principal amount, dated February 12, 1999, May 27, 1999, and
August 4, 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
Notes 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:
_______________________________
By: XXXX XXXXXX
BORROWER:
VISIONQUEST WORLDWIDE HOLDINGS CORPORATION
By:
Its:
