LOAN AGREEMENT
dated as of July 26, 2000
between
WIN GATE EQUITY GROUP INC.
and
XXXXXX X. XXXXXX, TRUSTEE
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is entered into as of July 26,
2000 between Win-Gate Equity Group Inc. ("Borrower"), a Florida corporation,
having its principal office at 00 Xxxxxxxx, Xxx Xxxx, XX 00000 (the "Office")
Xxxxxx X. Xxxxxx, Trustee ("Lender"), with his address at 0000 Xxxx Xxxxxxxxxx
Xxxxx Xxxx., Xxxxxxxxxx, XX 00000, joined in by Globaltron Communications
Corporation ("Guarantor"), a Delaware corporation and a wholly owned subsidiary
of the Borrower having its office at 000 Xxxxxxxx Xxxx., Xxxxx, Xxxxxxx.
RECITALS
WHEREAS, subject to and upon the terms and conditions herein set forth,
the Lender is willing to loan to the Borrower certain money as provided for
herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
(a) As used in this Agreement, the following defined terms shall have
the meanings indicated below:
"Agreement" means this Loan Agreement, the Exhibits and any other
documents or instruments delivered in accordance herewith, as the same may be
amended from time to time in accordance with the terms hereof.
"Borrower" has the meaning ascribed to it in the forepart of this
Agreement.
"Business Day" means any day other than a Saturday, Sunday or any day
on which State and Federal banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
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"Conversion Date" shall have the meaning set forth in Section 2.6
hereof.
"Event of Default" has the meaning ascribed to it in Article III.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
successor statute thereof.
"Interest Rate" shall have the meaning set forth in Section 2.5 (a).
"GNB" shall have the meaning set forth in Section 2.1 hereof.
"GNB Loan" shall have the meaning set forth in Section 2.1 hereof.
"Indebtedness" shall mean as to any Person (i) all indebtedness
(including principal, interest, fees and charges) of such Person (x) evidenced
by any notes, bonds, debentures or similar instruments made or issued by such
Person, (y) for borrowed money or (z) for the deferred purchase price of
property or services, (ii) the face amount of all letters of credit issued for
the account of such Person, (iii) all liabilities secured by any lien on any
property owned by such Person, whether or not such liabilities have been assumed
by such Person (provided, however, if such liability is non-recourse to such
Person, the amount of the Indebtedness attributed thereto shall not exceed the
greater of the fair market value of such property or the book value of such
property), (iv) the aggregate amount required to be capitalized in accordance
with GAAP under leases under which such Person is the lessee and (v) all
contingent obligations of such Person.
"Lender" has the meaning attributed to it in the forepart of this
Agreement.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under any
recording or notice statute, and any lease having substantially the same effect
as any of the foregoing).
"Loan" means the loan made by the Lender to the Borrower pursuant to
Section 2.1.
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"Material Adverse Effect" shall mean (a) any material adverse effect on
the condition (financial or otherwise), business, operations, assets, revenues,
properties or prospects of the Borrower, or (b) any material adverse effect on
the ability of the Borrower to perform any of its obligations under any of the
Operative Agreements.
"Maturity Date" shall mean 90 days from the date hereof; or if the
parties mutually agree to change the Maturity Date to a later date, such date.
"Note" means the convertible Promissory Note due on the Maturity Date
of the Borrower issued pursuant to Section 2.2, in the form attached as ExhibIt
1 hereto and made a part hereto.
"Office" shall have the meaning set forth in the forepart of this
Agreement.
"Operative Agreements" means the Note and this Agreement and any
supporting or other agreements required hereby to be entered into in connection
with the transactions contemplated by this Agreement.
"Person" means any natural person, corporation, limited
liability company, general partnership, limited partnership, limited liability
partnership, proprietorship, joint venture, other business organization, trust,
union, association or governmental or regulatory authority.
"Qualifying Private Placement" means a private placement in the amount
of not less than $10,000,000 to Persons unrelated to the Lender of shares of
common stock or any other class of equity securities of the Borrower.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor statute thereof.
(b) Unless the context of this Agreement otherwise requires, (i) words
of any gender include each other gender; (ii) words using the singular or plural
number also include the plural or singular number, respectively; (iii) the terms
"hereof," "herein," "hereby" and derivative or similar words refer to this
entire Agreement; (iv) the terms "Article" or "Section" refer to the specified
Article or Section of this Agreement; and (v) the phrases "ordinary course of
business" and "ordinary course of business consistent with past practice" refer
to the business an practice of the Borrower.
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ARTICLE II
THE LOAN
II.1 The Loan.
Subject to and upon the terms and conditions set forth herein, Lender
shall, on the date hereof, made a Loan to the Borrower in the principal amount
of US$900,000. If the Borrower defaults under the GNB Loan (as herein defined),
the Loan will be subordinate in right of payment and collection to a certain
loan entered into the Borrower and GNB Bank Panama S.A. ("GNB"), in the
principal amount of US$5,000,000 (excluding any additional Loans by GNB to
Borrower) (the "GNB Loan")
II.2 Note.
The Borrower's obligations to pay the principal of, and interest on,
the Loan made by the Lender are evidenced by the Note to be duly executed and
delivered by the Borrower, in the form of Exhibit 1, and delivered to the
Lender.
11.3 Method and Place of Payment, Except as otherwise specifically
provided herein, all payments under this Agreement or the Note shall be made to
the payee not later than 12:00 Noon (New York time) on the Maturity Date or on
the date when due, in accordance with the terms of this Agreement and shall be
made in lawful money of the United States of America at a location in New York
designated by the Lender in a written notice given to the Borrower. Whenever any
payment to be made hereunder or under the Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day.
11.4 Prepayment. The Note may be prepaid in whole or in part, from time
to time with interest accrued to the date of prepayment without the express
written consent of the Lender.
11.5 Interest
(a) The Borrower shall pay, on the date hereof, interest in respect of
the unpaid principal amount of the Note from the date hereof until the Maturity
Date at a rate of 12% per annum (the "Interest Rate")
(b) If principal or interest on the Loan is not paid when due,
thereafter the Borrower shall pay interest in respect of the unpaid principal
amount of the Loan at a rate per annum equal to 15%.
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(c) Accrued (and theretofore unpaid) interest in respect of the Loan
shall be payable (i) quarterly in advance; (ii) in case of conversion of the
Loan, in accordance with Section 2.6; or (iii) in the occurrence of an Event of
Default, on demand.
If by reason of a prepayment of the principal balance of the Note, the
amount of prepaid interest on the Note would result in a rate being charged in
excess of the highest lawful rate allowable under the applicable laws, then
Lender shall refund to Borrower an amount so that the interest rate received on
the Loan from the date of its funding is not in excess of the highest lawful
rate.
11.6 Conversion. At any time, after the Borrower has done a Qualifying
Private Placement and prior to the Maturity Date, at the request of the Lender,
it may convert the Note in whole or in part, inclusive of accrued interest to
the date of prepayment, into common stock or, at its selection, any other then
outstanding stock of the Borrower more senior of the common stock (the
"Conversion Stock"), on ten days prior written notice given to Borrower. Each
share of Conversion Stock shall be valued at the value of each share of common
stock or any other class of equity securities issued by the Borrower in the
Qualifying Private Placements done by the Borrower preceding the conversion of
the Loan.
11.7 GNB Loan. Notwithstanding any of the provisions of Sections 2.3
and 2.5 hereof, the principal amount of the Loan and the interests will not be
paid to the Lender, if Borrower has defaulted in any of its obligations and
payments due under the GNB Loan in the original principal amount of $5,000,000.
ARTICLE III
EVENTS OF DEFAULT
It shall be an Event of Default if any of the conditions or events
described in Sections 3.1 through 3.7 ("Events, of Default") shall occur and be
continuing:
III.1 Failure To Make Payments When Due. The Borrower shall (i)
default in the payment when due of the principal amount or the interest on the
Loan or (ii) default in any of the terms and provisions of its loan with GNB
Bank;
III.2 Breach of Agreements. Failure of the Borrower to perform or
comply with any of its obligations contained in this Agreement; 5
III.3 Representations, etc. Any representation, warranty, covenant or
statement made by or on behalf of the Borrower in this Agreement or in the Note
or in any certificate delivered pursuant hereto or thereto shall prove to be
untrue in any material respect on the date as of which made or deemed made;
III.4 Involuntary Bankruptcy, Appointment of Receiver, Etc. (i) A court
shall enter a decree or order for relief in respect of the Borrower in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, which decree or order is not stayed; or any
other similar relief shall be granted and remain unstayed under any applicable
federal or state law;' or (ii) an involuntary case is commenced against the
Borrower under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over the Borrower or over all
or a substantial part of any of its assets and properties, shall have been
entered; or an interim receiver, trustee or other custodian of the Borrower for
all or a substantial part of their assets and properties is involuntarily
appointed; or a warrant of attachment, execution or similar process is issued
against any substantial part of the assets and properties of the Borrower and
the continuance of any such events in this clause (ii) for thirty (30) days
unless dismissed, bonded, stayed, vacated or discharged; or
III.5 Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower
shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or shall consent to the entry of
an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent to
the appointment of or making possession by a receiver, trustee or other
custodian for all or a possession by a receiver, trustee or other custodian for
all or a substantial part of its assets and properties; the making by the
Borrower of any assignment for the benefit of creditors; the admission by the
Borrower in writing of their inability to pay its debts as such debts become
due; or the board of directors of the Borrower (or any committee thereof) adopts
any resolution or otherwise authorizes action to approve any of the foregoing.
III.6 Judgments or Liens. One or more judgments or decrees shall be
entered against the Borrower involving in the aggregate for them a liability of
the equivalent of US$500,000 or
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more, and all such judgments or decrees shall not have been vacated, discharged
or stayed or bounded pending appeal within 30 days after the entry thereof or a
Lien is imposed on the assets or properties of the Borrower in an amount of in
excess, together with other Liens, of US$500,000, exclusive of Liens to
equipment vendors.
III.7 Change in Condition. Any material adverse change in the condition
(financial or otherwise), operations, assets, liabilities or prospects of the
Borrower.
III.8 Remedies. Upon the occurrence of any Event of Default described
in this Section 3, the unpaid principal amount of and accrued interest on the
Loan shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all of which are
hereby expressly waived by the Borrower, and the obligations of the Lender
hereunder shall thereupon terminate.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
In order to induce the Lender to enter into this Agreement and to make
the Loan, the Borrower makes the following representations, warranties and
agreements as of the date hereof, which shall survive the execution and delivery
of this Agreement and the Notes and the making of the Loan:
IV.l Legal Status. The Borrower and each of its subsidiaries (i) is a
duly organized and validly existing corporation in good standing under the laws
of the jurisdiction of its incorporation, (ii) has the power and authority and
possesses all franchises, permits, authorizations and approvals necessary to
carry on their business as now being conducted and to own its property and
assets, and (iii) has good and marketable title to its assets free and clear of
any Lien, except for Liens that do not cause a Material Adverse Effect in the
condition of the Borrower and its subsidiaries and except as set forth in
Schedule 4.1. The Borrower and each of its subsidiaries is in good standing in
each jurisdiction where the ownership, leasing or operation of property or the
conduct of its business requires such qualification.
IV.2 Subsidiaries. The only subsidiaries of the Borrower are set forth
on Schedule 4.2.
IV.3 Power and Authority. (i) The Borrower has the power and authority
to execute, deliver and perform the terms and provisions of the Operative
Agreements and has taken, as the case
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may be, all necessary corporate action to authorize the execution, delivery and
performance by it of this Agreement; (ii) the Borrower has duly executed and
delivered the Operative Agreements and those Operative Agreements constitute its
legal, valid and binding obligation enforceable in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws relating to or
limiting creditors' rights generally or by general equity principles.
IV.4 No Violation. To the Borrower's actual knowledge, neither the
execution, delivery or performance by the Borrower of this Agreement, nor
compliance by it with the terms and provisions thereof, nor the use of the
proceeds of the Loans (i) will contravene any provision of any law, statute,
rule or regulation or any order, writ, injunction or decree of any court or
governmental instrumentality binding on the Borrower or any of its subsidiaries,
(ii) will conflict or be inconsistent with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default in
respect of the terms of any indenture, mortgage, deed of trust, credit
agreement, loan agreement or any other agreement, contract or instrument to
which the Borrower or any of its subsidiaries is a party or by which its
respective properties or assets is bound or to which it may be subject.
IV.5 Litigation. Except as set forth in Schedule 4.5, there is no
claim, counterclaim, action, suit, order, proceeding or investigation pending
or, to the knowledge of the Borrower, threatened against or affecting any of
them with respect to or affecting the Borrower, or its assets, properties or
rights, or relating to the transactions contemplated hereby, before any court,
agency, regulatory, administrative or other governmental body or officer of
before any arbitrator.
IV.6 Tax Returns, and. Payments. Except as provided in Schedule 4.6,
the Borrower has filed all tax returns required to be filed by the and has paid
all taxes payable by it which have become due pursuant to such tax returns and
all other taxes and assessments payable by them which have become due, other
than those not yet delinquent and except for those contested in good faith and
for which adequate reserves have been established.
IV.7 Capitalization. (a) As of June 30, 2000, the authorized capital
stock of the Borrower consists of 20,000,000 shares of common stock, $.01 par
value per share, of which 18,150,702 shares are issued and outstanding and
5,000,000 shares of preferred stock, $.01 par value per share, none of which is
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issued and outstanding. All the outstanding shares have been duly and validly
issued, are fully paid and non-assessable.
IV.8 Compliance with Laws, etc. The Borrower is in compliance in all
material respects with all applicable statutes, regulations and orders of, and
all applicable restrictions imposed by, all governmental bodies in respect of
the conduct of its business and the ownership of its property (including
applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls), and the issuance of its securities.
IV.9 Labor Relations. To the Borrower's knowledge there is (i) no
significant unfair labor practice complaint pending or threatened against either
the Borrower or any of its subsidiaries, or before any governmental body or
agency and no significant grievance or significant arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or any of its subsidiaries, threatened against the Borrower
or any of its subsidiaries or, (ii) no significant strike, labor dispute,
slowdown or stoppage pending against the Borrower or any of its subsidiaries or,
threatened against the Borrower or any of its subsidiaries, (iii), no union
representation question existing with respect to the employees of the Borrower
or any of its subsidiaries.
IV.1O Properties. The Borrower has good and marketable title, without
regard to defects of title which do not have a Material Adverse Effect, to all
properties owned by it, free and clear of all Liens. With respect to any lease
or rental agreement to which the Borrower is a party, (i) such lease or rental
agreement is in full force and effect, (ii) the Borrower has complied in all
material respects with all of the terms of such lease or rental agreement.
IV.11 Assets other than Real Property. Except as set forth on Schedule
4.11 and Liens to equipment vendors, and to the Borrower's knowledge, it has
good title to all tangible assets owned by it, free and clear of all Liens that
individually or in the aggregate would not have a Material Adverse Effect on the
Borrower. All the intangible personal property owned by the Borrower is in all
material respects in good operating condition and repair, ordinary wear and tear
excepted, and all personal property leased by the Borrower is in all material
respects in the condition required of such property by the terms of the lease
applicable thereto.
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IV.12 Patents, Licenses, Franchises and Formulas. The Borrower or its
subsidiaries owns all the patents, trademarks, permits, service marks, trade
names, copyrights, licenses, franchises and formulas, or rights with respect to
the foregoing, and have obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of their business, without
any known conflict with the rights of others which, or the failure to obtain
which, as the case may be, would result in a Material Adverse Effect on the
Borrower.
IV.13 Insurance. The Borrower and its subsidiaries presently maintains
and have maintained in effect since their formation all the insurance policies
required by applicable law or reasonably appropriate in connection with the
operation of its business as presently conducted.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that on and after the date hereof and
until the Note, together with all accrued interest, fees and all other
obligations incurred hereunder and thereunder, are paid in full:
V.1 Information Covenants. The Borrower will furnish or cause to be
furnished to the Lender:
(a) Promptly, copies of all financial information, proxy
materials and material filings, reports and information which either of
the Borrower or any of its subsidiaries shall file or be required to
file with any agency, regulatory authority or instrumentality of the
Government.
(b) Other Information. From time to time, such other
information or documents (financial or otherwise) as any Lender may
reasonably request.
V.2 Books, Records and Inspections. The Borrower and each of its
subsidiaries will keep proper books of record and account in which full, true
and correct entries in conformity with generally accepted accounting principles
consistently applied in the jurisdiction of each corporation and all
requirements of applicable law shall be made of all dealings and transactions in
relation to its business and activities.
V.3 Maintenance of Property, Insurance. The Borrower and each of its
subsidiaries will (i) keep all property useful and necessary in its business in
good working order and condition
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(ordinary wear and tear excepted), (ii) maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks as are customary and in accordance with
industry standards for the business in which it is engaged;
V.4 Corporate Franchises. The Borrower and each of its subsidiaries
will do or cause to be done, all things reasonably necessary to preserve and
keep in full force and effect its existence and its material rights, franchises,
licenses and other intellectual property.
V.5 Conversion Stock. The Borrower will reserve a sufficient amount of
its capital shares in order to permit Lender to exercise Lender's conversion
rights under Section 2.6 above.
V.6 GNB Loan. That Borrower shall take no actions which would
constitute an event of default under the GNB Loan.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees that on and after the date hereof and
until the Loan and the Note, together with interest, fees and all other
obligations incurred hereunder and thereunder, are paid in full:
VI.1 Consolidation, Merger, Sale of Assets, etc. The Borrower and each
of its subsidiaries will not wind up, liquidate or dissolve its affairs or enter
into any transaction of merger or consolidation, or convey, sell, lease or
otherwise dispose of (or agree to do any of the foregoing, at any future time)
all or any part of its property or assets, or purchase or otherwise acquire (in
one or a series of related transactions) any part of the property or assets
(other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person, except if the
Borrower is the surviving entity.
VI.2 Dividends and Redemptions. (a) The Borrower and each of its
subsidiaries will not declare or pay any dividends, or return any capital, to
its stockholders or authorize or make any other distribution, payment or
delivery of property or cash to its stockholders as such, or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for any consideration,
any shares of any class of its capital stock now or hereafter outstanding (or
any options or warrants issued by the Borrower with respect to its capital
stock), or set aside any funds for any of the foregoing
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purposes; and (b) the Borrower will not redeem any common stock of the Borrower.
VI.3 Transactions with Affiliates. The Borrower will not, and will not
permit any of its subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any affiliate other than on terms and conditions substantially as favorable to,
as the case may be, the Borrower or any such subsidiary as would be obtainable
by the Borrower or such Subsidiary at the time in a comparable arm's-length
transaction with a Person other than an affiliate.
VI.4 Business. The Borrower will not, and will not permit any of its
subsidiaries to, engage (directly or indirectly) in any business other than the
business in which it is engaged on the date hereof.
ARTICLE VII
SECURITIES MATTERS
VII.1 Upon conversion of the Note, the Conversion Stock, will be
received by the Lender for investment purposes for its own account, and not with
the view to, or for resale in connection with, any distribution thereof. Lender
understands that the Conversion Stock will not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or under the
securities laws of various states, by reason of a specified exemption from the
registration provisions thereunder.
VII.2 Lender acknowledges that the Conversion Stock may not be resold
unless they are subsequently registered under the Securities Act and under
applicable state securities laws or an exemption from such registration is
available. Lender has been advised or is aware of the provisions of Rule 144
promulgated under the Securities Act which permits limited resale of the
securities purchased in a private placement subject to the satisfaction of
certain conditions including, among other things, the availability of certain
current public information about Borrower and compliance with applicable
requirements regarding the holding period and the amount of securities to be
sold and the manner of sale.
VII.3 Lender has received and carefully reviewed (i) Borrower's
Registration Statement on Form S-1, (ii) all other information filed by Borrower
pursuant to the Securities Act or the Securities Exchange Act of 1934, as
amended.
VII.4 Lender is aware that no federal or state or other agency has
passed upon or made any finding or determination concerning the fairness of the
transactions contemplated by this
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Agreement or the adequacy of the disclosure of the exhibits and
schedules hereto and the Lender must forego the Conversion Stock, if an, that
such a review would provide.
VII.5 Lender understands and acknowledges that neither the Internal
Revenue Service nor any other tax authority has been asked to rule on nor has it
ruled on the tax consequences of the transactions contemplated hereby.
VII.6 Lender represents and covenants that it is arid "Accredited
Investor" as the term is defined in Rule 501(a) of Regulation D under the
Securities Act.
VII.7 Lender understands that all certificates for the Conversion Stock
shall bear a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF WITHOUT SUCH REGISTRATION OR THE DELIVERY TO THE ISSUER OF AN
OPINION OF COUNSEL, SATISFACTORY TO THE ISSUER, THAT SUCH DISPOSITION
WILL NOT REQUIRE REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
ARTICLE VIII
CONDITIONS PRECEDENT
The obligations of Lender to make any funding under the Loan is subject
to the following condition precedent:
An acknowledgment from GNB Bank that this Loan will not constitute a
default under the GNB Loan and that to the best of its knowledge, the Borrower
is not in default of the GNB Loan.
ARTICLE IX
MISCELLANEOUS
IX.1 Investment Intent. Lender represents to the Borrower that: (i) it
will acquire the Note received by it pursuant to this Agreement and any
securities of the Borrower issuable upon conversion or exercise thereof for
investment purposes only and not with a view to the resale or distribution
thereof in a public offering within the meaning of the Securities Act, (ii) such
Note and other securities have not been registered under the Securities Act and
may not be resold unless they are registered under the
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Securities Act or pursuant to an applicable exemption from such registration,
and (iii) Lender has such knowledge and experience in financial and business
matters that he or it is capable of evaluating the merits and risks in the
investment in the Borrower represented by the Notes and the shares issuable upon
conversion of the Notes.
IX.2 Notices. All notices, requests and other communications hereunder
must be in writing and delivered personally against written receipt, by
facsimile transmission with answerback confirmation or mailed by prepaid first
class certified mail (air mail, if faster delivery), return receipt requested,
or mailed by overnight (or in the case of notices being sent or delivered
outside the United States, second day) courier prepaid, to the parties at the
following addresses or facsimile numbers:
If to Borrower, to:
Win Gate Equity Group Inc.
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000.0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to Lender, to:
Xxxxxx Xxxxxx, Trustee:
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Fax: (000) 000.0000
With a copy to:
Greenspoon, Marder, Hirschfeld,
Rafkin, Xxxx & Xxxxxx, PA.
000 X. Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
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All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the applicable
facsimile number as provided in this Section, be deemed given upon receipt,
(iii) if delivered by United States mail in the manner described above to the
address as provided in this Section, be deemed given on the earlier of the tenth
Business Day following mailing or upon receipt and (iv) if delivered by courier
to the address as provided in this Section, be deemed given on the earlier of
the first Business Day (second Business Day in the case of notices given or sent
outside the United States) following the date sent by such courier or upon
receipt (in each case regardless of whether such notice, request or other
communication is received by any other Person to whom a copy of such notice is
to be delivered pursuant to this Section. Any party from time to time may
change its address, facsimile number or other information for the purpose of
notices to that party by giving notice specifying such change to the other party
hereto at least ten (10) Business Days prior to the effective date of such
notice.
IX.3 Entire Agreement. This Agreement and the Operative Agreements
supersede all prior discussions and agreements between the parties with respect
to the subject matter hereof and thereof and contain the sole and entire
agreement between the parties hereto with respect to the subject matter hereof
and thereof.
IX.4 Independence of. Representations, Warranties and Covenants. All
representations, warranties and covenants hereunder shall be given independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitation of, another representation, warranty or covenant
shall not avoid the occurrence of an Event of Default if such action is taken or
condition exists.
IX.5 No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights.
IX.6 Assignment; Binding Effect. This Agreement, all the rights,
interest or obligation hereunder may be assigned by the other party with the
prior written consent of the other party. This Agreement is binding upon, inures
to the benefit of and is
15
enforceable by the parties hereto and their respective permitted successors and
assigns.
IX.7 Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
IX.8 1nvalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
IX.9 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE.
IX.1O Computations. All computations of interest hereunder shall be
made on the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such
interest are payable.
IX.l1 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IX.12 Independent Advice. Lender confirms that he fully understands his
rights and obligations hereunder and that he has had an opportunity to consult
with such independent advisors, including counsel, as he deemed necessary or
appropriate.
IX.13 [INTENTIONALLY LEFT BLANK]
IX.14 JURY TRIAL WAIVER. THE LENDER AND BORROWER EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE
16
RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE OPERATIVE AGREEMENTS
AND ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT EXECUTED IN CONNECTION HEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
LENDER ENTERING INTO THIS AGREEMENT.
ARTICLE X
GUARANTY
X.l The Guarantor irrevocably and unconditionally, subject to the
subordination provided in Section 2.1, guarantees the full and prompt payment
when due of the principal amount of and interest on the Note issued under this
Agreement and all other obligations and liabilities of the Borrower now existing
or hereafter incurred under, arising out of or in connection with the Operative
Agreements and the due performance in compliance with the terms of the Operative
Agreements by the Borrower ("Guaranteed Obligations"). Guarantor understands,
agrees and confirms that the Lender may enforce this guaranty obligation up to
the full amount of the Guaranteed Obligations against it without proceeding
against the Borrower. Guarantor irrevocably and unconditionally promises to pay
such Guaranteed Obligations to the Lender, or order, on demand, in lawful money
of the United States of America. The guaranty provided herein shall constitute a
guaranty of payment and not of collection.
X.2 Guarantor hereby waives notice of acceptance of this guaranty
obligation and notice of any liability to which it may apply, and waives
presentment, demand of payment, protest, notice of dishonor or nonpayment of any
such liability, suit or taking of other action by the Lender against, and any
other notice to, any party liable thereon (including the Guarantor)
X.3 The obligations of the Guarantor under this Agreement are absolute
and unconditional and shall remain in full force and effect without regard to,
and shall not be released, suspended, discharged, terminated or otherwise
affected by, any circumstances or occurrence whatsoever.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officer of each party hereto as of the date first above
written.
WIN-GATE EQUITY GROUP INC
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
--------------------------
Title: CEO
-------------------------
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: XXXXXX X. XXXXXX
--------------------------
GLOBALTRON COMMUNICATIONS
CORPORATION
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
--------------------------
Title: CEO
-------------------------
17
SCHEDULE 4.1
None
18
SCHEDULE 4.2
GLOBALTRON
19
SCHEDULE 4.5
None
20
SCHEDULE 4.6
No taxes are owing by Win-Gate and therefore the tax returns have
not been filed.
21
SCHEDULE 4.11
None
22
PROMISSORY NOTE
$900,000.00 July 26, 2000
York, New York
FOR VALUE RECEIVED, the undersigned, Win-Gate Equity Group, Inc., a
Florida corporation, having its principal office at 00 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, hereinafter called "MAKER," promises to pay to the order of Xxxxxx X.
Xxxxxx, Trustee, or his successor(s) or assign(s) (collectively LENDER), at do
Mara and Xxxx Xxxxx, 000 Xxxx 00xx Xxxxxx, Xxx. 000, Xxx Xxxx, XX 00000, or such
other place in New York as the holder hereof may from time to time designate in
writing, the principal sum of NINE HUNDRED THOUSAND AND N0/100 DOLLARS
($900,000.00), or so much thereof as may have been advanced and outstanding from
time to time, together with interest thereon from the date or\dates of
disbursement of the aforesaid principal sum as hereinafter provided to be paid
in lawful money of the United State of America, which shall be legal tender in
payment of all debts and dues, public and private, at the time of payment.
Interest on this Promissory Note ("Note") shall accrue at a rate equal
to twelve percent (12%) per annum and shall be payable in advance on a
quarterly basis, commencing with the date of this Note.
This Note shall become due and payable in full ninety (90) days from
the date hereof at which time all outstanding principal and accrued but unpaid
interest hereon shall become due and payable in full.
This Note is executed pursuant to the Loan Agreement of even date
herewith between the undersigned MAKER and Xxxxxx X. Xxxxxx, Trustee (said Loan
Agreement, as may be amended, is hereinafter referred to as the "Agreement").
The terms and provision of the Agreement are incorporated by this
reference as though forth in full herein, and any default under the Agreement
shall constitute a default under this Note. In the event of any conflict or
inconsistency between the terms and provisions of this Note and those of the
Agreement, the terms and provisions of this Note shall in all respects govern
and control.
1
At the option and upon request of LENDER, LENDER may convert this Note
to shares of capital stock of MAKER as provided for under the Agreement.
In the event of any default under the Agreement or under any other
documents or instruments executed in connection therewith, including a failure
to make any payment of principal or interest due hereunder on the due date
thereof, LENDER may, at his option. accelerate maturity, and the unpaid
principal balance hereof and all accrued interest shall thereupon immediately
become due and payable without demand or notice. Failure to exercise this option
with respect to any failure or breach by MAKER shall not constitute a waiver of
the right as to any subsequent failure or breach.
MAKER and all endorsers, guarantors, sureties and other parties now or
hereafter liable for the payment of any sum or sums due or to become due under
the terms of this Note waive presentment, protest and demand, and notice of
protest, demand and dishonor, and nonpayment of this Note, and consent that the
holder hereof shall have the right, without notice, to deal in any way at any
time with any party hereto, or to grant any extension or extensions of time for
payment of any of said indebtedness or any other indulgences or forbearances
w1c~atsoever without in any way affecting the liability of any other party for
the payment of this Note.
MAKER further agrees to pay all reasonable costs of collection,
including reasonable attorney's fees and court costs (inclusive of any
bankruptcy or apellate proceedings), in case the principal of this Note or any
interest thereon is not paid when due whether suit be brought or not.
No delay or omission on the part of the holder hereof in exercising any
right hereunder shall operate as a waiver of such right or any other right under
is Note, nor shall any waiver on one occasion be construed as a bar to or waiver
of any such right on any future occasion. No waiver shall be effective unless in
writing and signed by the holder.
Interest hereunder shall be charged only on the sums advanced from the
date of advance to the date of repayment. MAKER hereof does not intend or expect
to pay, nor does LENDER intend or expect to charge, accept or collect any
interest which, when added to any other charge upon the principal, shall be in
excess of the highest lawful rate allowable under applicable law. Should
acceleration, prepayment or any other charges upon the principal or any portion
thereof result in the computation or earning of interest in excess of the
highest lawful rate allowable under applicable law, then any
2
and all such excess is hereby waived and shall be applied against the remaining
principal balance and/or refunded to MAKER to the extent such excess exceeds the
remaining principal balance.
This Note shall be governed as to validity, interpretation,
construction, effect and all other respects by the laws and decisions of the
State of New York.
The undersigned hereby specifically authorizes any action brought upon
the enforcement of this Note by LENDER to be instituted and prosecuted in either
the Circuit Court of Broward County, Florida, or in the United States District
Court for the Southern District of Florida, at the election of LENDER.
All payments made hereunder shall be credited first to accrued interest
on the unpaid balance, and lastly to the payment of principal; however, in the
event of any default hereunder, LENDER may, in its sole discretion, and in such
order as it may choose, apply any payment to interest, principal and/or lawful
charges and expenses then accrued. After maturity or default, this Note shall
bear interest at fifteen percent (15%) per annum.
This Note is binding upon MAKER and its successors and assigns.
MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY AGREEMENT,
DOCUMENT OR INSTRUMENT EXECUTED IN CONJUNCTION HEREWITH, 0R ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ACCEPTING
THIS NOTE FROM MAKER AND FOR LENDER ENTERING INTO THE AGREEMENT.
This Note is being executed and delivered in New York.
(CORPORATE SEAL) Win-Gate Equity Group, Inc.,
a Florida corporation
By: /s/ Xxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx
Its: CEO
------------------------
3
CERTIFICATE
The undersigned Xxxxx Xxxxx, Assistant Secretary of Globaltron
Communications Corporation ("GCC"), and Xxxx X. Xxxxxx, Secretary of Win-Gate
Equity (hoop, Inc., ("WOE") do hereby certify that the Board of Directors of
each of GCC and WGE authorized the execution of a loan agreement among GCC, WGE,
and Xxxxxx X. Xxxxxx, Trustee (the "Trustee"), for the loan by Trustee to WGE
for the principal sum of $9O0,000 plus interest at the rate of 12% (and the
delivery of a Promissory Note by WGE to the Trustee) under which loan agreement
GCC is a guarantor oF payment but not collection of the obligations of WGE
IN WITNESS WHEREOF, the undersigned have signed this Certificate this
24th day of July, 2000.
/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx
Assistant Secretary
Globaltron Communications Corporation
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Assistant Secretary
Win-Gate Equity Group, Inc.
