Exhibit 10.18
LOAN AGREEMENT
Agreement, made as of October 3, 2003 between Xxxxxxx Xxxxxx with an
address at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxx Xxxx 00000 (the "Lender") and
Xxxxxxxxx Energy Corporation, a Delaware company with its business address at
0000 Xxxxx Xxxxx Xxxx Xxxx. Xxxxxxxxx, Xxxxxxxx 00000 (the "Borrower").
WHEREAS, the Lender has made loans (the "Loans") to the Borrower from time
to time in the past.
WHEREAS, the Lender and the Borrower desire to memorialize the Loans in one
document, upon the terms and provisions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Loan.
(a) The Lender had made Loans to the Borrower, and Borrower has borrowed
from the Lender, the principal and interest accrued thereon to the date hereof
inclusive, in the aggregate amount of Four Million Eight Hundred Ninety-Two
Thousand One Hundred Fifty-One Dollars and Nine Cents ($4,892,151.09) (the
"Initial Principal").
(b) Interest shall accrue as of the date hereof on (i) the Initial
Principal and (ii) unpaid Principal Amount (as defined below) at the rate of
eight percent 8% per annum. The foregoing notwithstanding, in no event shall the
interest hereunder be more than the maximum rate of interest permitted by law.
(c) No interest on the Initial Principal shall be paid but shall accrue
until January 1, 2007. The amount of such interest accrued to such date shall be
One Million Two Hundred Seventy-One Thousand Nine Hundred Fifty-Nine Dollars and
Twenty-Eight Cents ($1,271,959.28) (the "Accrued Interest"). Such Accrued
Interest shall be added to the Initial Principal such that the Initial Principal
plus the Accrued Interest as of January 1, 2007 shall equal Six Million One
Hundred Sixty Four Thousand One Hundred Ten Dollars and Thirty Seven Cents
($6,164,110.37) (the "Principal Amount").
(d) The Principal Amount plus interest thereon shall be payable at the
end of each calendar quarter commencing on March31, 2007 in substantially equal
quarterly installments of Five Hundred Eighty Two Thousand Eight Hundred Seventy
Five Dollars and Seventy Nine Cents ($582,875.79) as set forth on Schedule 1(e)
attached hereto.
(e) The Borrower may prepay any or all of the Initial Principal, Accrued
Interest (to the extent accrued) or, Principal Amount and/or accrued and unpaid
interest thereon, at any time, from time-to-time without premium or penalty. Any
prepayment as described herein shall first reduce the Four Million Eight Hundred
Ninety-Two Thousand One Hundred Fifty-One Dollars and Nine Cents ($4,892,151.09)
Initial Principal accordingly with the balance of the reduced payments to be
payable at the end of each calendar quarter commencing on March 31, 2007 in
substantially equal quarterly installments.
(f) The foregoing payment terms or the Principal Amount plus interest
thereon shall be more particularly set forth in a promissory note in, or
substantially in, the forms attached hereto as Exhibit 1(e) (the "Note"). In the
event of any conflict between Section 1 hereof and the payment terms in the
Note, the payment terms in the Note shall govern.
2. Default. The Borrower shall be in default under this Agreement and the
Note (each an "Event of Default") if:
(a) It fails to pay any Principal Amount or interest on the Note when
due, which failure to pay continues uncured for ten (10) days after written
notice thereof by the Lender;
(b) It becomes insolvent or admits in writing its inability to pay its
debts as they mature; or applies for, consents to, or acquiesces in the
appointment of a trustee or receiver for any of its property; or in the absence
of an application, consent, or acquiescence a trustee or receiver is appointed
for it or a substantial part of its property and is not discharged within sixty
(60) days; or it otherwise commits an act of bankruptcy; or any bankruptcy,
reorganization, debt arrangement, or other proceeding under any bankruptcy or
insolvency law, or any dissolution or liquidation proceeding, is instituted by
or against it and if instituted is consented to or acquiesced in by it or
remains undismissed for one hundred twenty (120) days;
3. Acceleration at Option of Lender. If any Event of Default listed in
Sections 2(a) through (c) occur and shall continue, the Lender may declare, in
writing, the Note(s) immediately due and payable, at which time the unpaid
Principal Amount balance and interest thereunder shall immediately become due
and payable. The Lender shall promptly advise the Borrower in writing of any
acceleration under this Section, but the failure to do so shall not impair the
effect of a subsequent declaration.
4. Application of Payments. Notwithstanding any other provision of this
Agreement or any Note, all payments made hereunder and thereunder shall be
applied first to payment of sums payable hereunder other than interest and
Principal Amount, secondly, interest on the Principal Amount balance outstanding
hereunder and thereunder from time to time, and thirdly to the Principal Amount.
5. Representations and Warranties of the Lender. The Lender hereby
represents and warrants to the Borrower:
(a) he has the power and authority to execute and deliver this Agreement
and to perform his duties and responsibilities contemplated hereby, and this
Agreement constitutes the valid and binding obligation of the Lender, and it is
enforceable according to its terms;
(b) that neither the execution of this Agreement nor performance
hereunder will (i) violate, conflict with or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or lapse
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of time or both, would constitute a default) under the terms, conditions or
provisions of any contract, agreement or other instrument or obligation to which
he is a party, or by which he may be bound, or (ii) violate any order, judgment,
writ, injunction or decree applicable to him.
6. Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants to the Lender:
(a) the Borrower is a corporation duly organized validly existing and in
good standing under the laws of the state of its incorporation and it has
qualified to do business as a foreign corporation in the jurisdictions, if any,
outside of such state, in which it does business and is required to so qualify;
(b) the Borrower has corporate power and authority to execute and
deliver this Agreement and the Note(s) and to perform the duties and
responsibilities contemplated hereby and thereby, and this Agreement and the
Note(s) constitutes the valid and binding obligation of the Borrower, and they
are each enforceable according to their respective terms;
(c) the execution, delivery and performance of this Agreement and the
Note(s) has been duly authorized by the Borrower's Board of Directors, and no
other corporate approvals are necessary;
(d) that neither the execution of this Agreement or the Note(s) nor
performance hereunder or thereunder will (i) violate, conflict with or result in
a breach of any provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under the terms,
conditions or provisions of the Borrower's Certificate of Incorporation or
By-Laws or any contract, agreement or other instrument or obligation to which it
is a party, or by which it may be bound, or (ii) violate any order, judgment,
writ, injunction or decree applicable to it.
7. Attorneys Fees. Should this Agreement or the Note(s) be placed in the
hands of any attorneys for collection or enforcement upon the occurrence of an
Event of Default, the Borrower agrees to pay, in addition to all other amounts
due and payable hereunder and therewith, all costs and expenses of collection
and enforcement, including reasonable attorneys' fees, if the Lender prevails in
such action.
8. Waivers. The Borrower expressly (a) waives presentment, protest, notice
of dishonor, notice of non-payment, notice of maturity, notice of protest,
diligence in collection with respect to this Agreement and any Note(s), and the
benefit of any applicable exemptions, including, but not limited to, exemptions
claimed under insolvency laws, and (b) consents that the Lender may release or
surrender, exchange or substitute any property or other collateral or security
now held or which may hereafter be held as security for the payment under this
Agreement or the Note(s), and/or may release any guarantor, and/or may extend
the time for payment and/or otherwise modify the terms of payment of any part or
the whole of the debt evidenced hereby and thereby.
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9. Notices. Any notice, demand or request relating to any matter set forth
in this Agreement or under the Note shall be in writing and shall be deemed
effective when hand delivered~ or one (1) day following the date mailed by
overnight mail or nationally recognized overnight courier to the Borrower or the
Lender at his or its address stated herein (provided confirmation of receipt is
obtained) or at such other address of which he or she shall have notified the
party giving such notice in writing as aforesaid.
10. Benefit. This Agreement shall be binding on the respective successors
and assigns of the Lender and the Borrower and shall inure to the benefit of the
successors and assigns of the Lender.
11. Delay. No delay on the part of the Lender in the exercise of any right
shall operate as a waiver, nor shall any single or partial exercise of any right
preclude other or additional exercise of any right.
12. Assignment. Neither this Agreement nor the Note issued pursuant to this
Agreement shall be assigned by the Lender or the Borrower without the prior
written consent of the other.
13. Governing Law. This Agreement and the Note shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York
applicable to agreements made and to' be performed entirely in New York.
14. Entire Agreement. This Agreement and the. Note issued hereunder
constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and there are no representations, warranties or
commitments except as set forth herein. This Agreement and the Note supersede
all prior agreements, understandings, negotiations and discussions, whether
written or oral, of the parties hereto relating to the Loan and any portion
thereof, and the transactions contemplated by this Agreement. This Agreement and
the Note may be amended only by a writing executed by the parties hereto and
thereto, as the case may be.
Remainder of Page Intentionally Left Blank
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IN WITNESS WHEREOF the parties have caused this agreement to be executed by
their proper officers and by having their seals affixed on the day and year
first above written.
Lender
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/s/ XXXXXXX XXXXXX
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XXXXXXX XXXXXX
Borrower
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XXXXXXXXX ENERGY CORPORATION
By: /s/ XXXX XXXXXX
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Name: XXXX XXXXXX
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Title: President/CEO
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SCHEDULE 1(c)
Payment of Loan
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See amortization schedule attached hereto and initialed by the Lender and the
Borrower.
Loan Amortization Page 1
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LOAN AMORTIZATION
CUSTOMERS NAME: XXXXXXXXX ENERGY
Customer's Address
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Loan Parameters
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Amortization Method U.S. rule method Loan Amount $6,164,110.37
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Contract Date 1/1/2007 Interest Rate 8.0000%
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Payments Frequency Quarterly US Equivalent Rate N/A
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Compound Period N/A Number of Payments 12
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First Due Data 3/31/2007 Periodic Payments $582,875.79
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Canadian Mortgage No Interest Year 360-day year(U.S.)
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Additional Intermatios
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Total PFC $0.00 Total Principal $6,184,110.37 Maturity Date 12/31/2009
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Amt Financed $6,184,110.37 Total Interest $830,399.14 Last Payment 582,875.82
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APR 8.0000% Daily Rate 0.0222%
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Accumulate Cents No Total Payments $6,994,509.51 Pmts Per Year 4
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Loan Schemia
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Row Payment Account Periodic Principal Interest Interest
# Date Balance payment Paid Paid Due
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1. 2 3 4 5 6 7
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1 3/31/2007 $6,164,110.31 $582,875.79 $459,593.58 $123,282.21
2 6/30/2007 $5,704,316.79 $582,875.79 $468,785.45 $114,090.34
3 9/30/2007 $5,235,731.34 $582,875.79 $478,161.18 $104,714.63
4 12/31/2007 $4,757,570.18 $582,875.79 $487,724.39 $ 95,151.40
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Totals for 2007 $4.269,845.79 $2,331,503.16 $1,594,264.58 $437,238.58
5 3/31/2008 $4,269,845.79 $582,875.79 $497,478.87 $85,396.92
6 6/30/2008 $3,772,366.92 $582,875.79 $507,428.45 $75,447.34
7 9/30/2008 $3,264,938.47 $582,875.79 $517,577.02 $65,298.77
8 12/31/2008 $2,747,361.45 $582,875.79 $527.928.58 $54.947.23
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Totals for 2008 $2,219,432.89 $2,331,503.16 $2,050,412.90 $281,090.26
9 3/3l/2009 $2,219,432.89 $582,875.79 $538,487.13 $44,388.66
10 6/30/2009 $1,680,945.76 $582,875.79 $549,256.87 $33,618.92
11 9/30/2009 $1,131,688.89 $582,875.79 $560,242.01 $22,633.78
12 12/31/2009 $571,446.88 $582,875.82 $571,446.88 $11,428.94
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Totals for 2009 $2,331,503.19 $2,219,432.89 $112,070.30
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Summary $6,994,5O9.51 $6,164,110.37 $830,399.14
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