EX-10.4
LOAN AGREEMENT
LOAN AGREEMENT
This Loan Agreement ("Agreement") is to be effective as of the
June 1, 2006, by and between 5G Wireless Communications, Inc. with
offices located 0000 Xxx Xxx Xxxxxx, Xxxxxx xxx Xxx, Xxxxxxxxxx,
00000 ("Borrower"), and Xxxxxxx Xxxxx. ("Lender"), located at 0000
Xxxxxx Xxxx, Xxxxxxxx XX. X0X 0X0.
1. For value received, Borrower promises to pay to the order
of Lender on or before thirty (30) days from the date of this
Agreement ("Maturity Date"), the principal sum of twenty thousand
dollars ($20,000) ("Loan"), plus interest from the date hereof as
computed below.
2. The principal amount from time to time outstanding shall
bear simple interest from the commencement date through the Maturity
Date at a rate equal to ten percent (10%) per annum. In addition,
Borrower promises to pay to Lender to pay an administration fee of
four thousand dollars ($4,000), which shall be in the form of
restricted shares of Borrower's common stock ("Shares"), and issued
at a price based on a twenty five percent (25%) discount to the
lowest closing bid price in the 20 trading days prior to the
effective date of this Agreement ("Registrable Securities").
3. From and after the date that is thirty (30) days after the
date of this Agreement and until the fifth anniversary of the date of
this Agreement, for so long as any of the Registrable Securities are
outstanding and are not the subject of an effective registration
statement, if the Borrower contemplates making an offering of its
common stock (or other equity securities convertible into or
exchangeable for common stock) registered for sale under the
Securities Act of 1933 or proposes to file a registration statement
covering any of its securities other than (i) a registration on Form
S-8 or S-4, or any successor or similar forms; and (ii) a shelf
registration under Rule 415 for the sole purpose of registering
shares to be issued in connection with the acquisition of assets, the
Company will at each such time give prompt written notice to the
Lender of its intention to do so. Upon the written request within
thirty (30) days after the receipt of any such notice (which request
shall specify the Registrable Securities intended to be disposed of
and the intended method of disposition thereof), the Borrower shall
use its best efforts to effect the registration of all Registrable
Securities which the Borrower has been so requested to register, to
the extent requisite to permit the disposition (in accordance with
the intended methods of disposition) of the Registrable Securities,
by inclusion of such Registrable Securities in the registration
statement which covers the securities which the Borrower proposes to
register; provided, that if, at any time after giving written notice
of its intention to register any Registrable Securities and prior to
the effective date of the registration statement filed in connection
with such registration, the Borrower shall determine for any reason
either not to register or to delay registration of such Registrable
Securities, the Borrower may, at its election, give written notice of
such determination to the Lender and, thereupon, (i) in the case of a
determination not to register, the Borrower shall be relieved of its
obligation to register any Registrable Securities in connection with
such registration (but not from its obligation to pay the expenses of
registration in connection therewith), and (ii) in the case of a
determination to delay registering such Registrable Securities, shall
be permitted to delay registering any Registrable Securities, for the
same period as the delay in registering such other securities.
4. Upon the expiration of the term of this Agreement, whether
as a result of maturity, acceleration upon default, permitted payment
of the outstanding balance of this Loan, or otherwise, but in no
event later than the Maturity Date, the entire outstanding principal
balance under this Agreement, together with all accrued and unpaid
interest, shall be due and payable in full.
5. All payments under this Agreement shall be applied in the
following order:
(a) first, to the payment of accrued and unpaid interest
on the principal outstanding balance; and
(b) second, to the reduction of the outstanding principal
balance of this Loan.
6. All amounts payable under this Agreement shall be payable
in lawful money of the United States. Borrower shall be permitted to
prepay any amount due hereunder without the express written consent
of Lender.
7. All fees, charges, goods, things in action or any other
sums or things of value, other than the interest resulting from the
stated rate, under the laws of the State of California, may be deemed
to be interest with respect to this lending transaction, for the
purpose of any laws of the State of California that may limit the
maximum amount of interest to be charged with respect to this lending
transaction, shall be payable by Borrower, and shall be deemed to be
additional interest, and for such purposes only, the agreed upon and
"contracted for rate of interest" of this lending transaction shall
be deemed to be increased by the rate of interest resulting
therefrom. Borrower understands and believes that this lending
transaction complies with the usury laws of the State of California.
9. Maker and all endorsers, guarantors and all persons liable
or to become liable on this Agreement, waive presentment, protest and
demand, notice of protest, notice of intent to accelerate, notice of
acceleration, and demand and dishonor and nonpayment of this Loan and
any and all other notices or matters of a like nature, and consent to
any and all renewals and extensions of the time of payment hereof,
and agree further that at any time and from time to time without
notice, the terms of payment herein may be modified or increased,
changed or exchanged by agreement between Lender and Borrower.
10. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, except where
such law is preempted by the laws and regulations of the United States.
11. If any provision hereof shall, for any reason and to any
extent, be invalid or unenforceable, then the remainder of this
Agreement shall not be affected thereby but instead shall be
enforceable to the mi6ximum extent permitted by law.
12. All agreements between Borrower and Lender are expressly
limited so that in no contingency or event whatsoever, whether by
reason of advancement of the proceeds hereof, acceleration of
maturity of the unpaid principal balance hereof, or otherwise, shall
the amount paid or agreed to be paid to Lender for the use,
forbearance or detention of the money to be advanced hereunder exceed
the highest lawful rate permissible under the applicable usury law.
If, from any circumstances whatsoever, fulfillment of any provision
hereof or any other agreement referred to herein or otherwise
relating to this Agreement, at the time performance of such provision
shall be due, shall involve transcending the limit of validity
prescribed by law which a court of competent jurisdiction may deem
applicable thereto, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity, and if, from any
circumstance, Lender shall ever receive as interest an amount which
would exceed the highest lawful rate, such amount which would be in
excess of the lawful interest shall be applied to the reduction of
the unpaid principal balance due hereunder as of the date such amount
is received or deemed to be received by Holder and not to the payment
of interest. This provision shall control every other provision of
all agreements between Borrower and Lender. However, in the event an
amount determined to be excess interest is applied against the unpaid
principal balance, and thereafter the rate of interest accruing under
this Agreement decreases, this Agreement shall in fact, secure
interest at the then highest lawful rate until such time that the
difference between such rate and the interest rate which would
otherwise apply under this Agreement equals the amount of excess
interest previously applied against principal.
13. All notices provided for herein shall be in writing and
shall be (a) personally delivered or delivered by courier service
(e.g., Federal Express) to the party being notified if an individual,
or (b) transmitted by certified or registered mail, return receipt -
requested, addressed to all parties hereto at the address designated
for each party. Notice shall be deemed effective and received upon:
(i) the date of receipt if delivered by courier or by personal
delivery, or (ii) five (5) days after the deposit of same in a letter
box or other means provided for the posting of mail, postage prepaid
as provided above.
5G Wireless Communications, Inc.
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Chief Executive Officer
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
