EXHIBIT 4.5
THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO SUCH SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT
AND APPLICABLE STATE SECURITIES LAWS.
PROMISSORY NOTE
$350,000.00 Laguna Hills, California
July 18, 2001
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corporation, a Delaware
corporation ("Borrower"), promises to pay to Frastacky Associates, Inc., an
Ontario, Canada, corporation ("Lender"), or order, the principal amount of Three
Hundred Fifty Thousand Dollars ($350,000.00), with interest from the date hereof
on the unpaid principal balance under this Promissory Note (this "Note") at the
rate of nine percent (9%) per annum (on the basis of a 365-day year and the
actual number of days elapsed). The principal amount of this Note together with
all accrued but unpaid interest shall be due and payable on October 16, 2001
(the "Maturity Date", subject to extension as provided below), unless converted
as set forth below. (As used herein, "Lender" shall refer to the then current
registered holder of this Note.)
Concurrently with the issuance of this Note, Borrower is issuing to
Lender a warrant to purchase One Hundred Thousand (100,000) shares of Borrower's
common stock (the "Common Stock") at a purchase price of $1.00 per share.
In order to induce ▇▇▇▇▇▇ to accept this Note, Borrower hereby makes
the following representations:
1. To the best knowledge of Borrower, there is no litigation
pending or threatened against Borrower.
2. To the best knowledge of Borrower, all information and
documents provided to Lender by or on behalf of Borrower, including
unaudited financial statements, are complete and accurate as of the date
thereof.
3. The execution and delivery of this Note and any document
executed as a part of the transaction between ▇▇▇▇▇▇ and Borrower
contemplated hereby shall not constitute a breach of or a default under
any agreement or understanding to which the Borrower is a party.
4. Borrower will use the proceeds of this Note only to pay
▇▇▇▇▇▇▇▇'s trade payables and regular payroll obligations.
5. ▇▇▇▇▇▇▇▇'s offices are located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
6. Borrower is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware. Borrower is
duly qualified to do business in the State of California. This Note, and
all documents executed as a part of the transaction between ▇▇▇▇▇▇ and
Borrower contemplated hereby, have been duly authorized and approved by
borrower and are legal and binding obligations of Borrower according to
their terms.
7. Borrower anticipates that this Note will be repaid from monies
to be received as a result of the anticipated investment of $2.5 million
by Broad Street Capital Partners 1, L.P. in a new corporation to be formed
after the anticipated merger between Borrower and Providence Capital VI,
Inc.
All dollar amounts described in this Note are United States Dollars.
All payments under this Note shall be made to Lender or its order, in lawful
money of the United States of America and in immediately available funds
delivered to Lender at the offices of Lender at its then principal place of
business or at such other place as Lender shall designate in writing for such
purpose from time to time. If a payment under this Note otherwise would become
due and payable on a Saturday, Sunday or legal holiday, the due date thereof
shall be extended to the next day which is not a Saturday, Sunday or legal
holiday, and interest shall be payable thereon during such extension.
This Note may be prepaid in whole or in part at any time, without
premium or penalty. Any prepayment of this Note shall be applied in the
following order: (i) to the payment of accrued but unpaid interest; (ii) to the
payment of outstanding principal; and (iii) to the payment of costs and expenses
provided for under this Note.
No waiver or modification of any of the terms of this Note shall be
valid or binding unless set forth in a writing specifically referring to this
Note and signed by a duly authorized officer of Borrower and of Lender, and then
only to the extent specifically set forth therein.
If any default occurs in any payment due under this Note, Borrower
and all guarantors and endorsers hereof, and their successors and assigns,
promise to pay all costs and expenses, including attorneys' fees, incurred by
▇▇▇▇▇▇ in collecting or attempting to collect the indebtedness under this Note,
whether or not any action or proceeding is commenced. None of the provisions
hereof and none of ▇▇▇▇▇▇'s rights or remedies under this Note on account of any
past or future defaults shall be deemed to have been waived by ▇▇▇▇▇▇'s
acceptance of any past due payments or by any indulgence granted by ▇▇▇▇▇▇ to
Borrower.
Borrower and all guarantors and endorsers hereof, and their
successors and assigns, hereby waive presentment, demand, diligence, protest and
notice of every kind and agree that they shall remain liable for all amounts due
under this Note notwithstanding any extension of time or change in the terms of
payment of this Note granted by Lender or any delay or failure by Lender to
exercise any rights under this Note.
This Note has not been registered under the Act or the securities
laws of any state, in reliance upon exemptions from registration or
qualification. This Note is subject to
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restrictions on transferability and resale, and may not be hypothecated,
pledged, transferred or sold except as permitted by registration or exemption
under applicable federal and state laws. This Note is transferable only if
Lender supplies evidence satisfactory to Borrower (which may include opinion of
counsel from a law firm acceptable to Borrower) that ▇▇▇▇▇▇ has complied with
the appropriate registration requirements that such registration is not
required. Borrower may deem and treat the person in whose name this Note is
registered as its absolute owner for the purpose of receiving payments of
interest and principal, and for all other purposes.
This Note is secured by substantially all of the assets of ▇▇▇▇▇▇▇▇.
Borrower hereby grants a secondary security interest to Lender in each and all
of the assets of Borrower (including the proceeds thereof). Borrower shall
execute and deliver to Lender such UCC-1 Financing Statements, pledges,
assignments and instruments as may be necessary in order for Lender to perfect
these security interests, and hereby appoints ▇▇▇▇▇▇ and ▇▇▇▇▇▇'s attorney as
its special attorney-in-fact for the limited purpose of executing any such
documents on behalf of Borrower; provided that neither ▇▇▇▇▇▇ nor ▇▇▇▇▇▇'s
attorney may execute any such documents on behalf of Borrower unless ▇▇▇▇▇▇
shall have previously given Borrower two (2) business days prior written notice
identifying the document or documents to be executed and the reasons why such
execution is necessary to perfect the security interests, and enclosing a copy
of such document or documents.
If a court of competent jurisdiction finds that the terms of this
Note violate any applicable usury law, then the obligation to pay interest on
this Note shall be reduced to the maximum legal limit under applicable law
governing the interest payable in connection with this Note, and any amount of
interest paid by Borrower that is deemed in excess of the maximum interest rate
that could be paid at such time shall be deemed to have been a prepayment of
principal (without penalty) on this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of California, without giving effect to the principles thereof
relating to conflicts of law; provided, that, Lender reserves any and all rights
it may have under US federal law.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has caused this Note to be duly
executed the day and year first above written.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corporation,
a Delaware corporation
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
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