LOAN AGREEMENT
THE PROMISSORY NOTE TO BE ISSUED PURSUANT HERETO HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE OFFERED OR SOLD UNLESS THE SECURITIES ARE REGISTERED
UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.
THIS LOAN AGREEMENT (this "Agreement"), dated as of the 15th day of June,
2001 (this "Agreement"), is entered into by and between SCIENTIFIC ENERGY,
INC., a Nevada corporation (the "Debtor"), and TODD B. CROSLAND, an individual
resident of Salt Lake County, Utah ("Creditor").
Agreement
FOR AND IN CONSIDERATION of the mutual promises and covenants contained
herein and the mutual benefit to the parties to be derived from this
Agreement, it is hereby agreed as follows:
SECTION I
The Loan
1.1 Commitment. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Debtor
herein set forth, Creditor hereby agrees to lend to Debtor the aggregate sum
of Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00) (the "Loan").
1.2 Disbursement. The amount of the Loan shall be disbursed by
Creditor upon request of Debtor and upon satisfaction of all conditions
precedent thereto set forth in this Agreement as provided below on one or more
dates (each, a "Funding Date").
1.3 Conditions to Advance. Notwithstanding any other provision of
this Agreement, Creditor shall have no obligation to make any advance
hereunder if the conditions precedent to the making of such advance specified
in section III hereof have not been satisfied or if an event of default or
unmatured event of default shall have occurred and be continuing.
1.4 Interest. The unpaid principal amounts advanced under the Loan,
plus any accrued but unpaid interest, outstanding from time to time shall bear
interest at the rate of the PRIME interest rate, as per annum, compounded
monthly, for the actual number of days such amount is outstanding based on a
360-day year. Upon the occurrence and during the continuation of an Event of
Default, any unpaid principal amount of the Loan, and any overdue interest,
shall bear interest at a rate of the greater of: (a) ten percent (10%) per
annum or (b) three percent (3%) plus PRIME per annum, compounded monthly,
computed for the actual number of days such amount is outstanding based on a
360-day year.
1.5 Repayment. The principal amount of the Loan, together with all
accrued but unpaid interest, shall be due and payable on the date that is
thirty (30) days after demand therefor is given by the Creditor, which demand
shall not occur before the date that is one year from the date hereof.
Note
2.1 The Note. The obligation of Debtor to repay the Loan of Creditor
shall be evidenced by a promissory note(s) ("Note" or "Notes") of Debtor in
the form attached as Exhibit "A" hereto, dated the date of each borrowing
hereunder (or such other date as Debtor and Creditor agree upon), payable to
the order of Creditor, in accordance with the terms of this Agreement. The
Loan shall be payable, together with interest as provided therein, on the
terms and conditions more particularly set forth in such Note(s). Every term
contained in the Notes shall be deemed incorporated into this Agreement. To
the extent any provision of the Notes shall be deemed to be inconsistent with
the provisions of this Agreement, however, the provisions of this Agreement
shall control.
SECTION III
Conditions of Lending
The obligation of Creditor to make the Loan is subject to the following
conditions:
3.1 Certain Documents. All the following documents shall have been
received by Creditor on or before each Funding Date:
(a) Resolutions of Debtor's board of directors approving and
authorizing the execution, delivery, and performance of this Agreement, the
Note, and all other documents delivered in connection herewith (the "Loan
Documents") executed by it, certified as of the date of this Agreement by
Debtor's corporate secretary or an assistant secretary;
(b) Certificates from the duly authorized officer of Debtor to the
effect that it has satisfied each term, covenant, or condition required to be
kept, observed, or met as a condition precedent to making this Loan;
(c) The Note in the form of Exhibit "A" attached hereto, drawn to the
order of Creditor, executed as appropriate by Debtor;
(d) This Agreement executed by Debtor and Creditor;
(f) Such other documents as Creditor may reasonably request.
3.2 Representations and Warranties True. The representations and
warranties of Debtor contained in this Agreement shall be true on and as of
each Funding Date, except for inaccuracies that are not in the aggregate
material.
3.3 Compliance with Covenants. Debtor shall have performed, and be
in compliance with, in all material respects, all of its agreements and
covenants under this Agreement.
3.4 Absence of Event of Default. No Default or Event of Default
shall exist.
3.5 Financial Condition. Debtor shall have furnished such
information concerning the financial condition of Debtor as Creditor shall
reasonably request, and such information shall be satisfactory to Creditor and
its representatives. Such information shall include evidence that there has
been no adverse change in the financial condition of Debtor since the
immediately preceding Funding Date. There shall not then be pending against
Debtor any petition in bankruptcy, whether voluntary or otherwise, any
assignment for the benefit of creditors, any petition seeking reorganization
or arrangement under the bankruptcy, insolvency, reorganization or similar
laws of the United States or of any state thereof, or any other action
affecting the rights of creditors of Debtor brought under the aforesaid laws.
3.6 Legal Matters. All proceedings in connection with the Loan, all
documents incident thereto, and all legal matters in connection with the
transactions by Debtor to be financed hereunder shall be satisfactory in form
and substance to Creditor and Creditor's counsel, and Creditor shall have
received all approvals, opinions or documents that Creditor or its counsel may
reasonably have requested in connection with the Funding, all in form and
substance satisfactory to Creditor.
3.7 Access to Information; Due Diligence. Creditor and his
representatives shall have had access to such information and records of
Debtor as Creditor shall have reasonably requested, and all such information
and records shall be satisfactory to Creditor and its representatives.
3.8 Other Matters. Creditor shall have received from Debtor such
other agreements, certificates, instruments and documents as Creditor may
reasonably request to evidence or carry out the transactions contemplated by
this Agreement.
SECTION IV
Representations and Warranties
To induce the Creditor to extend its commitment hereunder and to make the
Loan hereunder, Debtor represents, covenants and warrants to Creditor and
agrees as follows:
4.1 Organization. Debtor is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Nevada and has
the power and is duly authorized, qualified, franchised, and licensed under
all applicable laws, regulations, ordinances, and orders of public authorities
to own all its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign corporation in the states in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification, except to the extent the failure to so qualify
would not materially and adversely affect the business, operations,
properties, assets or condition of Debtor. Debtor has full power and authority
to own or lease and to operate and use its assets and to carry on its business
as now conducted.
4.2 Authority of Debtor. Debtor has taken all action required by law,
its articles of incorporation or articles of organization, its bylaws or
operating agreement, or otherwise to authorize the execution and delivery of
the Loan Documents and the consummation of the transactions herein
contemplated. Debtor has full power and authority to execute, deliver and
perform all of the Loan Documents. This Agreement is, and the Loan Documents
will be on their execution and delivery as contemplated hereby, the legal,
valid, and binding agreements of Debtor, enforceable between the parties in
accordance with their terms, except as such enforcement may be limited by
bankruptcy, insolvency, or other laws affecting enforcement of creditors'
rights generally and by general principles of equity. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not,
violate any provision of Debtor's articles of incorporation or bylaws, or
violate, conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event
creating rights of acceleration, termination or cancellation or a loss of
rights under, or result in the creation or imposition of any encumbrance upon
any of the assets of Debtor, under any other material note, instrument,
agreement, mortgage, lease, license, franchise, permit or other authorization,
right, restriction or obligation to which Debtor or any of its assets are
subject or by which Debtor is bound.
4.3 Title to Property. Debtor has good and marketable title to all
of the personal and real properties as reflected on Debtor's most recent
balance sheet, free and clear of all encumbrances, and such imperfections of
title that are not individually or in the aggregate material or such as will
materially interfere with the conduct of Debtor's business. No UCC financing
statement covering any of the Stockholders' Equity is on file in any public
office.
4.4 Executive Offices. Debtor has not had its principal executive
office in any state other than Utah at any time since its organization.
4.5 Absence of Certain Changes or Events. Since the date of the most
recent financial statements delivered to Creditor, there has not been (i) any
material adverse change in the business, operations, properties, assets, or
condition of Debtor, or (ii) any damage, destruction, or loss to Debtor
(whether or not covered by insurance) materially and adversely affecting the
business, operations, properties, assets, or conditions of Debtor, taken as a
whole.
4.6 Governmental Authorizations. Debtor has all licenses,
franchises, permits, and other governmental authorizations that are legally
required to enable it to conduct the businesses of Debtor in all material
respects as conducted on the date of this Agreement. No authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by Debtor of this Agreement and the consummation by
Debtor of the transactions contemplated hereby.
4.7 Litigation and Proceedings. There are no actions, suits, or
proceedings pending or, to the knowledge of Debtor, threatened by or against,
or affecting Debtor or the properties of Debtor, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind; Debtor has no knowledge of any
default on its part with respect to any judgment, order, writ, injunction,
decree, award, rule, or regulation of any court, arbitrator, or governmental
agency or instrumentality.
4.8 Material Contract Defaults. Debtor is not in default in any
respect under the terms of any outstanding contract, agreement, lease, or
other commitment which is material to the business, operations, properties,
assets, or condition of Debtor, and there is no event of default or other
event which, with notice or lapse of time or both, would constitute a default
in any material respect under any such contract, agreement, lease, or other
commitment.
4.9 Taxes. All federal, state, local, and foreign tax returns and
tax reports required to be filed by or on behalf of Debtor have been filed
with the appropriate governmental agency and all jurisdictions in which such
reports are required to be filed, and all taxes which have become due pursuant
to such tax returns or to any assessment which has become payable have been
paid. Proper and accurate amounts of taxes have been withheld by or on behalf
of Debtor with respect to all compensation paid to employees of Debtor for all
periods ending on or before the date hereof, and all deposits required with
respect to compensation paid to such employees have been made, in complete
compliance with the provisions of all applicable federal, state, and local tax
and other laws.
4.10 Third-Party Consents. No contract, agreement, lease, or other
commitment, written or oral, to which Debtor is a party or to which any of its
properties or assets are subject require the consent of the other party in
order to consummate the transactions herein contemplated, except where the
failure to obtain such consent would not have a material adverse effect on the
business, operations, properties, or assets or condition of Debtor.
4.11 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed
of trust, or other material contract, agreement, or instrument to which Debtor
is a party or to which any of its properties or operations are subject, except
where such breach or default would not have a material adverse effect on the
business, operations, properties, or assets or condition of Debtor.
4.12 Compliance With Laws and Regulations. Debtor has complied with
all applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations,
properties, assets, or condition of Debtor or except to the extent that
noncompliance would not result in the incurrence of any material liability for
Debtor.
4.13 Insurance. All of the insurable properties of Debtor are insured
for the benefit of Debtor in the amount of their full replacement value
(subject to reasonable deductibles) against losses due to fire and other
casualty, with extended coverage, and other risks customarily insured against
by persons operating similar properties in the localities where such
properties are located and under valid and enforceable policies issued by
insurers of recognized responsibility. Debtor shall also maintain general
public liability insurance against claims for personal injury, death, or
property damage upon, in, or about Debtor's properties or operations,
affording protection and in such amounts reasonable and customary in the
circumstances with insurance carriers of recognized responsibility. Such
policy or policies containing substantially equivalent coverage will be
outstanding and in full force at all times when any portion of the Note
remains unpaid.
4.14 Insolvency Proceedings. No person has filed any proceeding in
any court in any jurisdiction asserting that Debtor is insolvent, fails to pay
its debts as they become due, or otherwise should become subject to any Debtor
Relief Law (as defined in section 8.1 below).
SECTION V
Affirmative Covenants
5.1 Punctual Payment and Performance. Debtor shall duly and
punctually pay the principal and interest on the Loan and all other amounts
provided for in this Agreement, or any other Loan Document, and shall perform
all its obligations and covenants under all Loan Documents.
5.2 Title to Properties. Debtor shall maintain good and marketable
title to the Stockholders' Equity, free and clear of all encumbrances. Debtor
shall warrant and forever defend its right, title and interest in and to its
assets against the claims and demands of every person whatsoever claiming or
which may claim the same or any part thereof.
5.3 Use of Loan Proceeds. Debtor will utilize all of the proceeds
from the Loan contemplated hereby for general corporate purposes, including
payment of administrative and overhead expenses.
5.4 Continuation of Business. Debtor will use its best efforts
consistent with prudent business practices to preserve and maintain its
business and business organization intact; to preserve its goodwill; to pay
its obligations as they mature; to retain its employees; and to retain its
relationships with investors, suppliers, and customers.
5.5 Compliance with Laws. Debtor will take all reasonably necessary
actions to comply with applicable statutes and regulations governing the
activities and operations of Debtor and will maintain its legal existence and
right to carry on its business in each state or other jurisdiction in which it
now conducts business.
5.6 Defective Execution. Debtor will promptly cure or cause to be
cured any defect in the execution or delivery of this Agreement and any other
instruments executed in connection with this transaction.
5.7 Additional Documents. Debtor will promptly execute and deliver,
or cause to be executed and delivered, any other instruments or documents
which Creditor may reasonably request or which may be required in order to
consummate the transactions contemplated by this Agreement.
5.8 Financial and Other Reports. So long as any balance due under
the Note remains outstanding, Debtor shall transmit to Creditor, within ninety
(90) days after the end of each fiscal year of Debtor and within forty-five
(45) days after the end of each fiscal quarter (other than the fourth fiscal
quarter), a copy of its financial statements for the fiscal year or quarter
then ended. At the request of Creditor, Debtor shall provide to Creditor
summaries of current activities, results of operations and other matters. In
addition, Creditor's duly authorized representatives, on five (5) days' prior
notice, shall have the right to inspect and audit the books and records of
Debtor during regular business hours.
SECTION VI
Negative Covenants
Debtor covenants and agrees that it will not, prior to the satisfaction
of all its obligations under the terms of this Agreement and accompanying
Note(s), without the prior written consent of Creditor, do any of the
following:
6.1 Restrictions on Liens; Satisfaction of Existing Obligations.
Debtor shall not create or incur, or suffer to be created or incurred or to
exist, any encumbrance upon any of its Assets, except purchase money security
interests, whether now owned or hereafter acquired, or upon the proceeds,
income or profits therefrom, and, other than in the ordinary course of its
business, Debtor will not discharge or satisfy any lien, mortgage, pledge,
charge, security, or other encumbrance on any of its present or future assets,
properties, or revenues.
6.2 Asset Sales. Debtor shall not sell, lease, assign, transfer or
otherwise dispose of any of its Assets, except for sales in the ordinary
course of Debtor's business.
6.3 Indebtedness. Other than in the ordinary course of its business,
Debtor will not engage in any transaction that would create or result in any
additional indebtedness or pay any obligation or liability.
6.4 Release of Claims. Except in the ordinary course of its
business, Debtor will not waive or release any of its rights or claims which
have any potential material value.
6.5 Governmental Compliance. Debtor will not violate in any material
respect any law, rule, regulation, order, or ordinance applicable to the
conduct of its business or relinquish or terminate any rights, qualifications,
licenses, or permits that would materially affect its financial condition or
business.
6.6 Sales of Assets or Corporate Reorganizations. Debtor will not
enter into any negotiation or agreement or entertain any proposals relating to
the sale of all or substantially all of its assets, or the merger of Debtor
with any other corporation or entity.
6.7 Guarantor or Surety. Debtor will not guarantee or act as surety
for any indebtedness of any person.
SECTION VII
Default
7.1. Events of Default. Upon the occurrence and during the
continuance of any one or more of the events hereinafter enumerated ("Events
of Default"), the unpaid balance of the principal and all interest then
accrued on the Note shall become immediately due and payable, without
presentation, demand, protest, notice of protest, or other notice of dishonor,
all of which are hereby expressly waived by Debtor, such events being as
follows:
(a) The failure or refusal of Debtor to pay principal of or interest
on the Notes within five (5) days of when the same becomes due in accordance
with the terms thereof.
(b) The failure or refusal of Debtor punctually and properly to
perform, observe, and comply with any other covenant or agreement contained in
this Agreement and the Notes and such failure or refusal is not cured or
remedied within thirty (30) days after Debtor has (or, with the exercise of
reasonable investigation, should have) notice thereof.
(c) Debtor shall (i) become insolvent, (ii) fail to pay its debts
generally as they become due, (iii) voluntarily seek, consent to or acquiesce
in the benefit or benefits of any Debtor Relief Law (defined hereinafter), or
(iv) become a party to (or be made the subject of) any proceeding provided for
by any Debtor Relief Law, other than as a creditor or claimant, that could
suspend or otherwise adversely affect the Rights (defined hereinafter) of
Creditor granted herein (unless, in the event such proceeding is involuntary,
the petition instituting same is dismissed within 60 days of the filing of
same). "Debtor Relief Law" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments, or similar Laws from time to time in effect affecting
the Rights of creditors generally. "Rights" means rights, remedies, powers,
and privileges. "Laws" means all applicable statutes, laws, ordinances,
regulations, orders, writs, injunctions, or decrees of any state,
commonwealth, nation, territory, possession, county, parish, municipality, or
Tribunal. "Tribunal" means any court or governmental department, commission,
board, bureau, agency or instrumentality of the United States or of any state,
commonwealth, nation, territory, possession, county, parish, or municipality,
whether now or hereafter constituted and/or existing.
(d) The failure to have discharged within a period of thirty (30)
days after the commencement thereof any attachment, sequestration or similar
proceeding against any of the assets of Debtor, or the loss, theft or
destruction of, or occurrence of substantial damage to, a material part of the
assets of Debtor, except to the extent adequately covered by insurance.
(e) Debtor fails to pay any money judgment against it at least ten
(10) days prior to the date on which any of Debtor's assets may be lawfully
sold to satisfy such judgment.
(f) The discovery by Creditor that any statement, representation, or
warranty herein or in any writing delivered to Creditor pursuant to this
Agreement, or the Note is false, misleading, or erroneous in any material
respect.
If any one or more of the Events of Default specified above shall have
happened, the Creditor may, at its option, (i) offset against the amount owed
to Creditor any sum or sums owed by Creditor to Debtor, (ii) reduce any claim
to judgment, (iii) execute and foreclose all liens or any part thereof, and/or
(iv) proceed to protect and enforce its rights either by suit in equity and/or
by action of law, or by other appropriate proceedings, whether for the
specific performance of any covenant or agreement contained in the Note, or in
aid of the exercise granted by the Note, of any right, or to enforce any other
legal or equitable right or remedy of the holder of the Note.
7.2 Procedure on Default. Upon the occurrence of an event of
default:
(a) In the event of default in the payment of said Loan when due or
declared due, Creditor, shall have any right or remedy provided by law or in
equity;
(b) The requirement of reasonable notice to Debtor of the time and
place of any public sale of the Debtor's assets or of the time after which any
private sale, or any other intended disposition thereof is to be made, shall
be met if such notice is mailed, postage prepaid, to Debtor at the address
designated below, at least 30 days before the date of any public or private
sale or other disposition is to be made.
7.3 Defaults Upon Prior Indebtedness. Upon the default of Debtor of
any term, covenant, or condition required to be performed by it on any
priority secured indebtedness or the receipt by Debtor from any such priority
secured creditor of notice of any default under such indebtedness, whether or
not repayment of the indebtedness is accelerated, Debtor shall promptly advise
Creditor in writing of the nature and amount of default and of the action, if
any, threatened by such priority secured creditor. Notwithstanding Debtor's
obligation to cure any and all such defaults, Creditor may, but shall not be
obligated to do so, cure such default in the name, place, and stead of Debtor
and, in the case of such curative efforts by Creditor, succeed to all of the
rights, remedies, and security of such priority secured creditor.
SECTION VIII
Miscellaneous Provisions
8.1 Assignment of Agreement. Except as expressly provided, neither
the rights nor the duties of the parties to this Agreement may be assigned or
delegated by Debtor in whole or in part without the prior written consent of
Creditor.
8.2 Governing Law. Unless otherwise provided herein, this Agreement
shall be governed by, and construed and enforced in accordance with, the laws
of the state of Utah.
8.3 Notices. All notices, demands, requests, or other communications
required or authorized hereunder shall be deemed given sufficiently if in
writing and if personally delivered; if sent by facsimile transmission; if
sent by registered mail or certified mail, return receipt requested and
postage prepaid; or if sent by second day express delivery:
If to Creditor, to: Todd B. Crosland
630 North 400 West
Salt Lake City, UT 84103
Telecopy No.: (801) 328-3194
If to Debtor, to: Scientific Energy, Inc.
630 North 400 West
Salt Lake City, UT 84103
Telecopy No.: (801) 328-3194
or other such addresses and facsimile numbers as shall be furnished by any
party in the manner for giving notices hereunder, and any such notice, demand,
request, or other communication shall be deemed to have been given as of the
date so delivered or sent by facsimile transmission, three days after the date
so mailed, or two days after the date so sent by second day delivery.
8.4 Title and Captions. Section titles and captions of this
Agreement are for convenience and reference only and shall not be deemed part
of this Agreement and shall not be interpreted to define, limit, augment,
extend, or describe the scope, content, or intent of any part or parts of this
Agreement.
8.5 Pronouns and Plurals. Whenever the context may require, all
pronouns used herein shall include the corresponding masculine, feminine, or
neuter forms and the singular form of pronouns and verbs shall include the
plural and vice versa. Each of the foregoing genders and plurals is
understood to refer to a corporation, partnership, or other legal entity when
the context so requires.
8.6 Further Action. The parties shall execute and deliver all
documents and instruments, provide all information, and take or forebear from
all such action as may be necessary or appropriate to achieve the purposes of
this Agreement.
8.7 Binding Effect Upon Successors. This Agreement shall be binding
upon, and inure to the benefit of, the parties and their respective heirs,
executors, administrators, successors, legal representatives, and assigns;
provided, that this provision shall not be construed as permitting assignment,
substitution, delegation, or other transfer of rights or obligations, except
strictly in accordance with the provisions of this Agreement.
8.8 Entire Agreement; Integration. This Agreement and the Note to be
executed and delivered in accordance herewith constitute the entire agreement
among the parties pertaining to the subject matter hereof, and supersede all
prior agreements and understandings pertaining thereto. No covenant,
representation, or condition not expressed in this Agreement shall affect or
be deemed to interpret, change, or restrict the express provisions hereof.
The failure of either party to inspect the documents referred to herein
constitutes a waiver of any objection, contention, or claim that may be based
upon such an inspection.
8.9 Creditors. Unless expressly provided in this Agreement, none of
the provisions of this Agreement shall be for the benefit of, or enforceable
by, any creditors of any party hereto.
8.10 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, promise, or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or any other covenant, duty, promise,
or condition. Any party may, by notice delivered in the manner provided in
this Agreement, but shall be under no obligation to, waive any of its rights
or any conditions to its obligations hereunder, or any duty, obligation, or
covenant of any other party. No waiver shall affect or alter the remainder of
this Agreement but each and every other covenant, duty, promise, and condition
hereof shall continue in force and effect with respect to any other then
existing or subsequently occurring breach.
8.11 Rights and Remedies. The rights and remedies of any of the
parties hereof shall not be mutually exclusive, and the exercise of the rights
arising from one or more of the provisions of this Agreement shall not
preclude the exercise of the rights arising from any other provision. Each of
the parties confirms that damages at law may be an inadequate remedy for a
breach or threatened breach of any provision hereof. The respective rights
and obligations hereunder shall be enforceable by specific performance,
injunction, or other equitable remedy, but nothing herein contained is
intended to or shall limit or affect any rights at law, statutory or
otherwise, of any party aggrieved as against the other parties for a breach or
threatened breach of any provision hereof, it being the intention by this
paragraph to make clear the agreement of the parties that the respective
rights and obligations of the parties hereunder shall be enforceable in equity
as well as at law or otherwise.
8.12 Severability. In the event that any condition, covenant, or
other provision herein contained is held to be invalid or void by any court of
competent jurisdiction, the same shall be deemed severable from the remainder
of this Agreement and shall in no way affect any other covenant or condition
herein contained. If such condition, covenant, or other provision shall be
deemed invalid due to its scope or breadth, such provision shall be deemed
valid to the extent of the scope of breadth permitted by law.
8.13 Exhibit. All exhibits attached to this Agreement and any
documents to be delivered herewith are expressly made a part of this Agreement
as fully as though completely set forth in it. All references to this
Agreement, either in the Agreement itself or in any of such writings, shall be
deemed to refer to and include this Agreement and all such exhibits and
writings. Any breach of or default under any provision of any of such writing
shall, for all purposes, constitute a breach or default under this Agreement
and all other such writings.
8.14 Authorization. Each individual executing this Agreement does
thereby represent and warrant to each other person so signing (and each other
entity for which another person may be signing) that he has been duly
authorized to deliver this Agreement in the capacity, and for the entity (if
any), set forth where he signs.
8.15 Survival of Warranties and Representations. The warranties and
representations contained in this Agreement shall survive consummation of the
transactions contemplated herein.
8.16 Attorneys' Fees. Should either party take any legal action to
enforce any of the terms or provisions of the Loan Documents, or any costs are
incurred by reason of breach or default in any of the covenants,
representations, warranties, terms, or conditions of the Loan Documents, the
nondefaulting party shall be entitled to recover any costs, including
attorneys' fees incurred in enforcing the obligations of the other party under
the terms of the Loan Documents or in collecting any judgment that may be
entered.
8.17 Time of Essence. Time is of the essence in the performance of
the duties, covenants, or obligations of the parties under the terms of this
Agreement.
8.18 Counterpart Execution. This Agreement may be executed as one
instrument signed by all parties or in separate counterparts hereof, each of
which counterparts shall be considered an original and all of which shall be
deemed to be one instrument, and any signed counterpart shall be deemed signed
and delivered by the party signing it if sent to any other party hereto by
electronic facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective this 15th day of June, 2001.
Debtor:
SCIENTIFIC ENERGY, INC.
By: /s/ Jana K. Meyer
----------------------------------
Jana K. Meyer, Secretary/Treasurer
Creditor:
/s/ Todd B. Crosland
--------------------
TODD B. CROSLAND
[EXHIBIT A]
PROMISSORY NOTE
$___0,000.00 Salt Lake City, Utah _________, 2001
FOR VALUE RECEIVED, the undersigned, SCIENTIFIC ENERGY, INC. ("Maker"), a
Nevada corporation whose mailing address is 630 North 400 West, Salt Lake
City, UT 84103, hereby promises to pay to the order of TODD B. CROSLAND
("Payee"), an individual resident of 630 North 400 West, Salt Lake City, UT
84103, the principal sum of ______________ THOUSAND and NO/100 Dollars
($___0,000.00), or such lesser amount as has been advanced by Payee to Maker
pursuant to the Loan Agreement dated June 15, 2001 between Maker and Payee
(the "Loan Agreement"), in lawful money of the United States of America for
payment of private debts, together with interest (calculated on the basis of
the actual number of days elapsed but computed as if each year consisted of
360 days) on the unpaid principal balance from time to time outstanding at a
rate which from day to day shall be, except as otherwise provided in this
note, the prime rate per annum, compounded monthly. All past due amounts and
accrued interest thereon shall bear interest at a rate of the greater of: (a)
ten percent (10%) per annum or (b) three percent (3%) plus PRIME per annum,
compounded monthly, computed for the actual number of days such amount is
outstanding based on a 360-day year.
1. Payments. The principal amount of this Note, together with all
accrued but unpaid interest, shall be due and payable on the date that is
thirty (30) days after demand therefor is given by the holder of this Note,
which demand shall not occur before June 15, 2002.
2. Time and Place of Payment. If any payment falls due on a day
which is considered a legal holiday in the state of Utah, Maker shall be
entitled to delay such payment until the next succeeding regular business day,
but interest shall continue to accrue until the payment is in fact made. Each
payment or prepayment hereon must be paid at the office of Payee set forth
above, or at such other place as the Payee or other holder hereof may from
time to time designate in writing, in lawful money or in funds which are or
will be available for immediate use by Payee at such office by 2:00 p.m., Salt
Lake City time on the day payment or prepayment is due.
3. Prepayment. Maker reserves the right and privilege of prepaying
this Note in whole or in part at any time, or from time to time, without
notice, premium, charge, or penalty. Prepayments on this Note shall be
applied first to accrued and unpaid interest to the date of such prepayment,
next to expenses for which Payee is due to be reimbursed under the terms of
this Note, and then to the unpaid principal balance hereof.
4. Default. An event of default ("Event of Default") shall be deemed
to have occurred upon the happening of any of the following events or
conditions:
(a) The failure or refusal of Maker to pay principal of or
interest on this note within five (5) days of when the same becomes due in
accordance with the terms hereof.
(b) The failure or refusal of Maker punctually to and properly
to perform, observe, and comply with any covenant or agreement contained
herein, and such failure or refusal continues for a period of thirty (30) days
after Maker has (or, with the exercise of reasonable investigation, should
have) notice thereof.
(c) Maker shall (i) become insolvent, (ii) fail to pay its debts
generally as they become due, (iii) voluntarily seek, consent to or acquiesce
in the benefit or benefits of any Debtor Relief Law (defined hereinafter), or
(iv) become a party to (or be made the subject of) any proceeding provided for
by any Debtor Relief Law, other than as a creditor or claimant, that could
suspend or otherwise adversely affect the Rights (defined hereinafter) of
Payee granted herein (unless, in the event such proceeding is involuntary, the
petition instituting same is dismissed within 60 days of the filing of same).
"Debtor Relief Law" means the Bankruptcy Code of the United States of America
and all other applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, suspension of
payments, or similar Laws from time to time in effect affecting the Rights of
creditors generally. "Rights" means rights, remedies, powers, and privileges.
"Laws" means all applicable statutes, laws, ordinances, regulations, orders,
writs, injunctions, or decrees of any state, commonwealth, nation, territory,
possession, county, parish, municipality, or Tribunal. "Tribunal" means any
court or governmental department, commission, board, bureau, agency or
instrumentality of the United States or of any state, commonwealth, nation,
territory, possession, county, parish, or municipality, whether now or
hereafter constituted and/or existing.
(d) The failure to have discharged within a period of thirty
(30) days after the commencement thereof any attachment, sequestration or
similar proceeding against any of the assets of Maker, or the loss, theft or
destruction of, or occurrence of substantial damage to, a material part of the
assets of Maker, except to the extent adequately covered by insurance.
(e) Maker fails to pay any money judgment against it at least
ten (10) days prior to the date on which any of Maker's assets may be lawfully
sold to satisfy such judgment.
(f) The discovery by Payee that any statement, representation,
or warranty herein or in any writing ever delivered to Payee pursuant to this
Note is false, misleading, or erroneous in any material respect.
If any one or more of the Events of Default specified above shall have
happened, the entire unpaid balance of principal of and accrued interest on
this Note shall be immediately due and payable without presentation, demand,
protest, notice of protest, or other notice of dishonor, all of which are
hereby expressly waived by Debtor, and the holder of this Note may, without
notice or demand (which are hereby waived), at his option, (i) offset against
this Note any sum or sums owed by the holder hereof to Maker, (ii) reduce any
claim to judgment, (iii) foreclose all liens or any part thereof, and/or (iv)
proceed to protect and enforce its rights either by suit in equity and/or by
action of law, or by other appropriate proceedings, whether for the specific
performance of any covenant or agreement contained in this Note, or in aid of
the exercise granted by this Note, of any right, or to enforce any other legal
or equitable right or remedy of the holder of this Note.
5. Cumulative Rights. No delay on the part of the holder of this
Note in the exercise of any power or right or single partial exercise of any
such power or right under this Note, or under any other instrument executed
pursuant hereto shall operate as a waiver thereof. Enforcement by the holder
of this Note of any right for the payment hereof shall not constitute any
election by it of remedies so as to preclude the exercise of any other remedy
available to it.
6. Collection Costs. If this Note is placed in the hands of an
attorney for collection, or if it is collected through any legal proceeding at
law or in equity or in bankruptcy, receivership or other court proceedings,
Maker agrees to pay all costs of collection, including but not limited to
court costs and reasonable attorney's fees of the Payee.
7. Waiver. Maker, and each surety, endorser, guarantor, and other
party liable for the payment of any sums of money payable on this Note,
jointly and severally waive presentment and demand for payment, protest, and
notice of protest and nonpayment, or other notice of default except as
specified herein and agree that their liability on this Note shall not be
affected by any renewal or extension in the time of payment hereof, or in any
indulgences, or by any partial payment, any release or change in any security
for the payment of this Note, before or after maturity, regardless of the
number of such renewals, extensions, indulgences, releases, or changes.
8. Notices. Any notice or demand given hereunder by the holder
hereof shall be deemed to have been given and received (a) when actually
received by Maker, if delivered in person, (b) if mailed, on the earlier of
the date actually received or (whether ever received or not) two business days
after deposit in the U. S. Mail, postage prepaid, addressed to Maker at its
address on the first page, or (c) as otherwise provided in the Loan Agreement.
9. Successor and Assigns. All of the covenants, stipulations,
promises and agreements in this Note contained by or on behalf of Maker shall
bind its successors and assigns, whether so expressed or not; provided,
however, that Maker may not, without the prior written consent of Payee,
assign any rights, powers, duties, or obligations under this note.
10. Headings. The headings of the paragraphs of this Note are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
11. Applicable Law. This Note is being executed and delivered, and
is intended to be performed, in the state of Utah, and the substantive laws of
such state shall govern the validity, construction, enforcement and
interpretation of this Note except insofar as federal laws shall have
application.
EXECUTED effective the ______ day of _______________, 2001.
SCIENTIFIC ENERGY, INC.
By:_______________________________________
Jana K. Meyer, Secretary/Treasurer