LOAN AND PLEDGE AGREEMENT
This LOAN AND PLEDGE AGREEMENT (this "AGREEMENT") is made as
of March 15, 2001, by and among World Commerce Online, Inc., a Delaware
corporation (the "COMPANY"), and Gordon Williams ("LENDER").
1. The Company has requested Lender to lend it up to
Fifty Thousand Dollars ($50,000) and Lender is willing to provide the loan,
which loan is to be evidenced by a Senior Secured Promissory Note secured by a
pledge of all of the assets of the Company, all subject to the terms and
conditions stated herein.
In consideration of the agreements and covenants contained
herein, together with other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. TERMS OF THE LOAN
1.1. THE LOAN. Lender agrees, on the terms and conditions
hereinafter set forth, to make loans to the Company in the aggregate principal
amount of Fifty Thousand Dollars ($50,000) (the "LOAN"). The proceeds of the
Loan shall be used by the Company for general working capital purposes.
1.2. THE LENDER NOTE. The Loan shall be evidenced by a
Senior Secured Promissory Note dated the date hereof (the "LENDER NOTE"),
representing the obligation of the Company to repay the Loan, together with
interest thereon. A form of the Lender Note is attached hereto as Exhibit A. The
Company authorizes Lender to endorse the date and amount of the Loan and any
prepayment on the schedule annexed to and constituting a part of the Lender
Note, which endorsement shall constitute prima facia evidence of the accuracy of
the information, in the absence of manifest error. The failure to record any
such amount or any error in recording shall not, however, limit or otherwise
affect the obligations of the Company to repay the principal amount of the Loan
together with all interest accruing thereon.
1.3. REPAYMENT. The outstanding principal and interest is
payable immediately upon receipt by the Company of written demand for payment
from Lender at which time all of the outstanding and unpaid principal and
interest shall be immediately due and
payable (the "MATURITY DATE"). All payments of principal and interest shall be
made in U.S. Dollars.
1.4. INTEREST. Interest on the outstanding principal shall
equal to ten percent (10%) per annum (the "INTEREST RATE") and shall accrue from
the date on which principal was advanced. Interest shall be calculated on the
basis of a three hundred and sixty five (365) day year.
1.5 LENDER WARRANT. The Company shall issue to Lender a
warrant dated the date hereof, in the form attached hereto as Exhibit B (the
SECTION 2. CONDITIONS PRECEDENT
2.1. DOCUMENTS REQUIRED FOR CLOSING. The obligation of
Lender to make the Loan is subject to the conditions precedent that the Company
shall have delivered to Lender prior to the disbursement of the Loan the
(A) THIS AGREEMENT. This Agreement, duly
executed by an authorized officer of the Company and Lender.
(B) THE LENDER NOTE. The Lender Note, duly
executed by an authorized officer of the Company.
(C) THE LENDER WARRANT. The Lender Warrant, duly
executed by an authorized officer of the Company.
(D) UCC-1. Copies of UCC-1 Financing Statements
("UCC-1") filed with the Secretary of State of the States of Florida,
California, Delaware and Pennsylvania and listing Lender as the secured party.
(E) ADDITIONAL MATTERS. All other documents in
connection with the transactions contemplated hereby reasonably requested by
SECTION 3. PLEDGE AND SECURITY AGREEMENTS
3.1. SECURITY INTEREST AND PLEDGE. As security for the
prompt and complete satisfaction of any and all obligations of the Company under
this Agreement and the Note, or under any other agreement or note, now existing
or hereafter arising, whether for principal, interest, expenses or otherwise,
the Company hereby grants, transfers and assigns and pledges to Lender all of
its respective right, title and interest in and grants Lender a senior security
interest in the Company's assets as set forth in those UCC-1 Financing
Statements (the "UCC-1") filed
with the Secretary of State of the States of Florida, California, Delaware and
Pennsylvania (the "PLEDGED ASSETS"), which assets are now in existence, together
with after-acquired property.
3.2 DEFAULT. If the Company defaults in the payment of
the principal or interest under the Lender Note when it becomes due (whether
upon acceleration or otherwise) or any other event of default under the Lender
Note or this Agreement occurs (including the bankruptcy or insolvency of the
Company), Lender may exercise any and all the rights, powers and remedies of any
owner of the Pledged Assets and shall have and may exercise without demand any
and all the rights and remedies granted to a secured party upon default under
the Uniform Commercial Code of the State of Florida or otherwise available to
Lender under applicable law. Without limiting the foregoing, Lender is
authorized to sell, assign and deliver at its discretion, from time to time, all
or any part of the Pledged Assets at any private sale or public auction, on not
less than ten days written notice to the Company, at such price or prices and
upon such terms as Lender may deem advisable. The Company shall have no right to
redeem the Pledged Assets after any such sale or assignment. At any such sale or
auction, Lender may bid for, and become the purchaser of, the whole or any part
of the Pledged Assets offered for sale. In case of any such sale, after
deducting the costs, attorneys' fees and other expenses of sale and delivery,
the remaining proceeds of such sale shall be applied to the principal of and
accrued interest on the Lender Note; provided that after payment in full of the
indebtedness evidenced by the Lender Note, the balance of the proceeds of sale
then remaining shall be paid to the Company and the Company shall be entitled to
the return of any of the Pledged Assets remaining in the hands of Lender. The
Company shall be liable for any deficiency if the remaining proceeds are
insufficient to pay the indebtedness under the Lender Note in full, including
the fees of any attorneys employed by Lender to collect such deficiency.
3.3 COSTS AND ATTORNEYS' FEES. All costs and expenses
(including court costs and reasonable attorneys' fees) incurred in exercising
any right, power or remedy conferred by this Agreement or in the enforcement
thereof, shall become part of the indebtedness secured hereunder and shall be
paid by the Company or repaid from the proceeds of the sale of the Pledged
3.4 PAYMENT OF INDEBTEDNESS AND RELEASE OF PLEDGED
ASSETS. Upon payment in full of the indebtedness evidenced by the Lender Note,
Lender shall surrender the Pledged Assets to the Company together with all forms
3.5 NO OTHER LIENS; NO SALES OR TRANSFERS. The Company
hereby represents and warrants that it has good and valid title to all of the
Pledged Assets, free and clear of all liens, security interests and other
encumbrances (other than liens and security interests in favor of Participating
Creditors as defined in the Intercreditor Agreement dated as of December 6,
2000, by and among Interprise Technology Partners LP, Drax Holdings, LP, Viscaya
Investments, Inc., DC Investment Partners Exchange Fund, L.P., Fred Drasner and
Martin and Ruth Krall and the Company), and the Company hereby covenants that,
until such time as all of the outstanding principal of and interest on the
Lender Note has been repaid, the Company shall not (i) create, incur, assure or
suffer to exist any pledge, security interest, encumbrance, lien or charge of
any kind against the Pledged Assets or the Company's rights or a holder thereof,
other than pursuant to this
Agreement or under substantially similar terms as those set forth in this
agreement, or (ii) sell or otherwise transfer any Pledged Assets or any interest
therein, other than in the ordinary course of the Company's business.
3.6 FURTHER ASSURANCES. The Company agrees that at any
time and from time to time upon the written request of Lender the Company shall
execute and deliver such further documents (including UCC financing statements)
and do such further acts and things as Lender may reasonably request in order to
effect the purposes of this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES. In addition
to the representations and warranties contained in Section 3.5 above, in order
to induce Lender to enter into this Agreement, the Company represents and
warrants to Lender that:
4.1. DUE ORGANIZATION, GOOD STANDING AND AUTHORITY. The
Company is duly organized, validly existing and in good standing under the laws
of the state of Delaware and is qualified to do business in every jurisdiction
where necessary in light of its business and properties, except where the
failure to be so qualified would not have a material adverse effect on the
business or financial condition of the Company. The Company has full power,
authority and legal right (a) to own or lease its assets and properties and to
conduct its business as now being conducted, (b) to incur its obligations under
and to perform the terms of this Agreement, the Lender Note and the Lender
Warrant, and (c) to issue the Lender Warrant and Warrant Stock (as defined in
the Lender Warrant).
4.2. DUE AUTHORIZATION; NON-CONTRAVENTION. The execution
and delivery by the Company of this Agreement, the Lender Note, the Lender
Warrant and all ancillary instruments issued hereunder, and the performance of
the terms hereof and thereof will not be, or result in, a violation, breach or
default of any law, agreement or instrument to which the Company is a party.
4.3. VALIDITY. This Agreement, the Lender Note and the
Lender Warrant when delivered will be legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their respective
4.4. SHARES. Upon exercise of the Lender Warrant in
accordance with its terms as contemplated therein, the Warrant Shares (as
defined therein) will be duly authorized, validly issued, fully paid, and
nonassessable, will not be issued in violation of any preemptive rights, and the
holders of the Warrant Shares will have good title to such shares, free and
clear of all liens, security interests, pledges, charges, encumbrances,
shareholders' agreements and voting trusts. Upon conversion of the Warrant
Shares into Common Stock in accordance with the Certificate of Incorporation,
the Common Stock then issued will be duly authorized, validly issued, fully
paid, and nonassessable, will not be issued in violation of any preemptive
rights, and the holders of the Common Stock will have good title to such shares,
free and clear of all liens, security interests, pledges, charges, encumbrances,
shareholders' agreements and voting trusts.
4.5 COMPLIANCE. All the consents required for compliance
with the terms of this Agreement and the Lender Note have been acquired.
Compliance with the terms of this Agreement and the Lender Note will not cause
the Company to lose any interest in or the benefit of any asset, right, license
or privilege it presently owns or enjoys or cause any person who normally does
business with the Company not to continue to do so on the same basis as
previously, and will not give rise to or cause to become exercisable any option
or right of preemption.
4.6 NO DEFAULT. The Company is not, and shall not be as a
result of this Agreement or the Lender Note, in default under any instrument
constituting any indebtedness or under any guarantee of any indebtedness and
there is no reason why any such indebtedness or guarantee should be called or
the liabilities thereunder accelerated before their due date (if any) or any
loan facilities terminated.
4.7 CAPITALIZATION. The authorized capital stock of the
Company consists of 100,000,000 shares of capital stock, consisting of
90,000,000 shares of Common Stock, par value $.001 per share, and 10,000,000
shares of Preferred Stock, par value $.001 per share, of which 4,250,000 are
designated as Series A Convertible Preferred Stock, par value $.001 per share,
5,110,000 are designated as Series B Preferred Stock, par value $.001 per share,
and 91,802 are designated as Series C Preferred Stock, par value $.001 per
share. The Company has 16,283,647 shares of Common Stock, 4,250,000 shares of
Series A Convertible Preferred Stock, 5,000,000 shares of Series B Preferred
Stock and 91,802 shares of Series C Preferred Stock issued and outstanding.
Except as set forth in Schedule 4.7 attached hereto, the Company does not have
outstanding any stock or securities convertible or exchangeable for any shares
of its capital stock or containing any profit participation features, nor does
it have outstanding any rights or options to subscribe for or to purchase its
capital stock or any stock or securities convertible into or exchangeable for
its capital stock or any stock appreciation rights or phantom stock plans. The
Company is not be subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its capital stock or any
warrants, options, or other rights to acquire its capital stock, except pursuant
to its Certificate of Incorporation. All of the outstanding shares of the
Company's capital stock are and shall be validly issued, fully paid, and
4.8 LITIGATION. Except at set forth in Schedule 4.8
attached hereto, there is no action, suit or proceeding, by or before any
governmental or regulatory authority, court, arbitral tribunal or other body now
pending (or, to the best knowledge of the Company, threatened) against or
affecting the Company or any of its properties, rights, or assets or which may
effect the legality or enforceability of this Agreement or the Lender Note.
SECTION 5. COVENANTS. In addition to the covenants
contained in Section 3.5 above, the Company covenants and agrees that, from the
date hereof until the Maturity Date and for so long as the Loan remains
outstanding and unpaid, in whole or in part, or any other amount is owing to
Lender under this Agreement, unless Lender shall otherwise consent in writing,
the Company will promptly give notice to Lender as soon as it becomes aware of
(a) any Event of
Default (as defined in Section 6) or (b) any other matter, event or thing that
has had or could reasonably have a material adverse effect on the Company or its
SECTION 6. EVENTS OF DEFAULT AND REMEDIES
6.1. EVENTS OF DEFAULT. The occurrence and continuance of
any one or more of the following events (whether or not in the control of the
Company) shall constitute an Event of Default:
(A) NONPAYMENT. The Company shall fail to make,
on or before the due date, in the manner required, any payment of principal,
interest or any other sums due under this Agreement.
(B) OTHER DEFAULTS; CURE PERIOD. The Company
shall fail to observe or perform any of its covenants contained in this
Agreement, other than the covenants and provisions relating to payments in
paragraph (a) above, and the Company shall have not remedied such default within
ten (10) business days after such default.
(C) REPRESENTATION OR WARRANTY. Any
representation, warranty or statement made or deemed to be made by the Company
herein or in any document given hereunder shall prove to have been untrue in any
material respect as of the time made.
(D) INSOLVENCY. The Company shall generally not
pay its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the benefit
of creditors; or (i) the Company shall commence any voluntary bankruptcy
proceeding, or (ii) there shall be commenced against the Company by another
party any such case, proceeding or other action in bankruptcy which remains
unstayed, undismissed or undischarged for a period of 60 days.
6.2. ACCELERATION. On the Date of Default, there shall
immediately be due and payable to Lender the amount of the Loan outstanding,
plus accrued interest and all other amounts owed by the Company pursuant to this
Agreement. All amounts under this Section 6 are due and payable without
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Company.
6.3. REMEDIES UPON EVENT OF DEFAULT.
(A) GENERAL. Subject to Section 6.3(b) below, if
any Event of Default shall have occurred and be continuing, Lender may proceed
to protect and enforce his rights as holder of the Lender Note, either by suit
in equity or by action at law, or both, whether for the specific performance of
any covenant or agreement contained in this Agreement or in aid of the exercise
of any power granted in this Agreement, and may proceed to enforce the payment
of all amounts due upon the Lender Note, and such further amounts as shall be
sufficient to cover the
costs and expenses of collection (including, without limitation, court costs and
reasonable counsel fees and disbursements), or to enforce any other legal or
equitable right of the holder of the Lender Note. In addition, Lender shall have
all the rights of a pledgee in possession of the Pledged Assets under the
applicable provisions of law and of the Uniform Commercial Code as in effect in
the State of Florida, and any other jurisdiction where any of the Collateral is
located, and all rights and remedies provided in Section 3 of this Agreement or
at law or in equity or otherwise.
(B) REMEDIES CUMULATIVE. No remedy conferred in
this Agreement or the Lender Note upon Lender is intended to be exclusive of any
other remedy and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.
(C) REMEDIES NOT WAIVED. No course of dealing
between the Company and Lender and no delay or failure in exercising any rights
hereunder or under the Lender Note in respect thereof, shall operate as a waiver
of any of the rights of Lender.
SECTION 7. MISCELLANEOUS
7.1. NOTICES. All notices, demands or other communications
in connection with this Agreement shall be in writing and shall be delivered by
hand, sent by registered or certified mail or by facsimile addressed to the
parties as set forth below (or to such other address as the parties may
designate by notice):
If to Lender:
Credit Suisse First Boston
11 Madison Avenue, 7th Floor
New York, NY 10010
If to the Company to:
World Commerce Online, Inc.
9677 Tradeport Drive
Orlando, FL 32827
Attention: Mark Patten
Fax: (407) 240-9228
With a copy (which shall not constitute notice) to:
Greenberg Traurig, P.A.
111 North Orange Avenue, 20th Floor
Orlando, FL 32801
Attention: Tucker Byrd
Fax: (407) 420-5909
A notice delivered by hand to a party shall be deemed received when delivered. A
notice sent by mail shall be deemed received on the fifth business day after
mailing. A notice sent by facsimile shall be deemed received upon receipt of the
relevant confirmation or answerback.
7.2. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Lender Note, nor consent to any departure by
the Company therefrom, shall be effective unless the same shall be in writing
and signed by the parties, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
7.3. COSTS AND EXPENSES. The Company shall reimburse
Lender for its reasonable fees and expenses (including its reasonable fees and
expenses of its counsel and other advisors) which Lender has incurred in
connection with the transaction. In addition, the Company agrees to pay, and
hold Lender harmless against liability for the payment of: (i) its reasonable
fees and expenses (including its reasonable fees and expenses of its counsel and
other advisors) arising in connection with the interpretation and enforcement of
its rights under, this Agreement, the other agreements contemplated hereby, the
Articles of Incorporation and the Company's Bylaws, and the consummation of the
transactions contemplated hereby and thereby (including, but not limited to,
court costs and reasonable fees and expenses arising with respect to any
subsequent or proposed acquisitions, sales, mergers, or recapitalizations by the
Company and its Subsidiaries); (ii) the reasonable fees and expenses incurred
with respect to any amendments or waivers (whether or not the same become
effective) under or in respect of this Agreement, the other agreements
contemplated hereby and the Articles of Incorporation and the Company's Bylaws;
(iii) reasonable travel expenses and other reasonable out-of-pocket fees and
expenses as have been or may be incurred by Lender its directors, officers and
employees in connection with the transactions contemplated hereby (including,
but not limited to, reasonable fees and expenses incurred in attending
Company-related meetings); and (iv) stamp and other Taxes which may be payable
in respect of the execution and delivery of this Agreement, the filing of the
UCC-1 or the issuance, delivery, or acquisition of any shares of Stock upon
exercise of the Lender Warrant.
7.4. INDEMNIFICATION. The Company will indemnify and hold
harmless Lender and his agents, representatives and employees against any and
all costs, claims, losses and expenses (including reasonable attorneys' fees)
sustained or incurred as a consequence of, arising from or related to the
negotiation, execution and performance of this Agreement, the Lender Note, the
Lender Warrant and all collateral agreements.
7.5. BINDING EFFECT; ASSIGNMENT OF RIGHTS. This Agreement
shall become effective when it has been executed by the parties and thereafter
shall be binding upon and inure to
the benefit of the Company and Lender and their respective successors,
transferees and assigns, except that the Company shall not have the right to
transfer or assign any of its rights or obligations hereunder without the prior
written consent of Lender
7.6. GOVERNING LAW. This agreement shall be governed in
accordance with the laws of the state of Delaware, without giving effect to its
choice of law principles.
7.7. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement
may be executed in counterparts and executed signature pages sent to the other
party by facsimile transmission shall be binding as evidence of such party's
agreement hereto and acceptance hereof.
7.8. ENTIRE AGREEMENT. This Agreement and the other
documents referred to herein, constitute the entire agreement between Lender and
the Company and no other agreements, promises, representations and warranties
(express or implied), except those expressly set forth herein have been relied
upon by the Company or have been made by Lender.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered by its respective duly authorized
officers as of the day and year first above written.
World Commerce Online, Inc.
By: /s/ Mark E. Patten
Name: Mark E. Patten
Title: Chief Financial Officer
By: /s/ Gordon Williams
Name: Gordon Williams
1. Claim by Porter-Novelli (public relations firm) for trade payables of
$80K. This matter is contested.
2. Claim (lawsuit filed in California) by Atlas Solutions, Inc. for 20,000
shares of ProduceOnline, Inc. Common Stock to have been issued for services
rendered. This matter is contested.
3. Potential claim by Chuck James for stock recovery. Mr. James resigned
from the Company, and the Company exercised its rights to recapture
("claw-back") stock issued to Mr. James. Mr. James disputes the Company's
action. No lawsuit has been filed.