Note: Executed in substantially the same form between Carbon Resources, Inc. a
Delaware Corporation (the "Borrower") by Xxxxxxxxx X. Xxxxxxx, President, and
Covol Technologies, Inc. (the "Secured Party")
Execution Copy
LOAN AGREEMENT
This LOAN AGREEMENT (this "Agreement"), dated as of April 21,
1998, is by and between X.X. Xxxx Capital, L.L.C., a Delaware limited liability
company ("Pace Capital" or the "Borrower") and Covol Technologies, Inc. ("Covol"
or the
"Lender").
W I T N E S S E T H :
WHEREAS, each of Pace Capital and Carbon Resources, Inc.
("Carbon Resources") is a member of Pace Carbon Fuels, L.L.C., a Delaware
limited liability company which is the General Partner of Pace Carbon Synfuels
Investors, L.P., a Delaware limited partnership (the "Partnership"); and
WHEREAS, the Partnership operates pursuant to the terms of an
Amended and Restated Agreement of Limited Partnership dated as of February 5,
1998 (the "Partnership Agreement"); and
WHEREAS, the Partnership owns 100% of the membership interest
in, among other entities, PC Virginia Synthetic Fuel #1, L.L.C., PC West
Virginia Synthetic Fuel #1, L.L.C., PC West Virginia Synthetic Fuel #2, L.L.C.
and PC West Virginia Synthetic Fuel #3, L.L.C. (each a "Project Company" and,
collectively, the "Project Companies"); and
WHEREAS, the Lender has entered into Amended and Restated
License and Binder Purchase Agreements with each Project Company, each of which
agreements was made and entered into as of February 3, 1998 and each of which
agreements is herein referred to as a "Licensing Agreement;" and
WHEREAS, pursuant to each such Licensing Agreement, the Lender
is entitled to receive royalties under the terms and as described in the
Licensing Agreement (the "Royalties"); and
WHEREAS, as a condition to the execution and delivery of the
Licensing Agreements, the Lender agreed to lend funds to the Borrower and to
Carbon Resources to enable the Borrower and Carbon Resources to make capital
contributions to the General Partner; and
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
WHEREAS, by a Loan Agreement of even date herewith, the Lender
has agreed to lend funds to Carbon Resources on terms identical to those set
forth herein (the "Carbon Resources Loan Agreement").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Borrower and the Lender, intending to be legally bound, do hereby agree as
follows:
Section 1. Definitions and Terms
1.1 Definitions. In addition to the terms defined in the preamble and
recitals above, the following capitalized terms shall have their respective
meanings as set forth below:
"Advance" means each loan to the Borrower made by the Lender under this
Agreement.
"Commitment" means the sum of $ * as provided in Section 2.1 hereof.
"Escrow Account" means the escrow account described in Section 3.6 of
each of the Licensing Agreements.
"Event of Default" has the meaning set forth in Section 5.1 hereof.
"General Partner" means Pace Carbon Fuels, L.L.C., a Delaware limited
liability company, the general partner of Pace Carbon Synfuels Investors, L.P.
"GP's Special Reserve" means the "GP's Special Reserve" as described in
Section 5.12 of the Partnership Agreement.
"Loan" means, as of any date, the aggregate amount of Advances made
hereunder on or prior to such date less amounts which have been repaid.
"Loan Advance Date" has the meaning set forth in Section 2.2 hereof.
"Loan Commitment Period" has the meaning set forth in Section 2.1
hereof.
"Loan Termination Date" means June 30, 2008.
"Maximum Available Advance" has the meaning set forth in Section 2.2
hereof.
"Note" means the promissory note described in Section 2.5 hereof.
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
"Received Royalties" means Royalties paid to or at the direction of the
Lender under any one or more of the Licensing Agreements and, with respect to
Royalties paid into the Escrow Account, such amounts as are released to the
Lender.
"Released Amounts" shall have the meaning set forth in Section 2.6(a)
hereof.
"Royalties" means any and all Royalty as such term is used in the
Licensing Agreements.
1.2 Other Defined Terms; Rules of Interpretation.
(a) For purposes of this Agreement, all other capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
them in the Partnership Agreement (such definitions to be equally applicable to
both the singular and plural forms of the terms defined).
(b) Except as otherwise provided herein, any term defined by
reference to an agreement, instrument or other document shall have the meaning
so assigned to it as such agreement, instrument or other document may be amended
in accordance with its terms, whether or not such document is in effect at the
time of reference to such document. A reference to any Person includes its
permitted successors and permitted assigns. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provisions of this
Agreement, and section, schedule and exhibit references are to this Agreement
unless otherwise specified. Except as otherwise defined or provided herein,
accounting terms shall be construed, and all financial computations shall be
made, in accordance with generally accepted accounting principles consistently
applied.
Section 2. The Loan
2.1 Agreement to Lend. Subject to the terms and conditions of this
Agreement, the Lender agrees to lend to the Borrower, in quarterly installments,
an aggregate principal amount (excluding capitalized interest as described
below) not to exceed * dollars ($ * ) (the "Commitment") during the period from
and including November 1, 1998 to and including February 1, 2008 (the "Loan
Commitment Period").
2.2 Advances. The Lender agrees that it will, subject to the terms and
limitations set forth below, make an Advance to the Borrower in the amount of $
* (or such lesser amount as the Borrower shall request or, if the Maximum
Available Advance, as defined below, is greater than $ *, such greater amount as
the Borrower may request) on November 1, 1998 and on the first day of each
February, May, August and November thereafter during the Loan Commitment Period
(each a "Loan Advance Date").
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
The Lender's obligation to make an Advance on any Loan Advance Date
shall be subject to the following:
(a) No Advance shall be required to the extent the amount of such
Advance would cause the amount of all Advances made under this Agreement to
exceed the lesser of (i) the Commitment, and (ii) the aggregate amount of
Received Royalties received by the Lender as of such Loan Advance Date; and
(b) The Borrower shall have delivered to the Lender a written request
for such Advance at least three (3) days prior to the Loan Advance Date, and
such request shall have stated the amount of the Advance thereby requested.
If, on any Loan Advance Date, the amount advanced by the Lender to the
Borrower is less than the Maximum Available Advance (as defined below), the
difference between the Maximum Available Advance and the actual Advance made on
such date shall be carried forward and shall be available on the next Loan
Advance Date. The "Maximum Available Advance" on each Loan Advance Date shall be
amount equal to (i) $ * multiplied by the number of Loan Advance Dates occurring
on or prior to such date, less (ii) the aggregate amount of all previous
Advances.
2.3 Purpose. Subject to the terms hereof, the proceeds of each Advance
shall be used by the Borrower solely to make capital contributions to the
General Partner.
2.4 Interest. Interest shall accrue on the principal amount of the Loan
outstanding from time to time at a simple annual rate equal to six percent (6%)
per annum. Interest shall compound on the first day of each calendar year and
shall be due and payable on the date on which the principal amount advanced
hereunder becomes due and payable. The amount of interest accrued and unpaid
shall not be considered principal for purposes of determining the amount of
Advances made hereunder.
2.5 Note.
(a) The Loan shall be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit A hereto, with appropriate
insertions as to date and principal amount, payable to the order of the Lender
and in a principal amount equal to the lesser of (i) the Commitment, and (ii)
the aggregate unpaid principal amount of all Advances.
(b) The Lender is authorized to record, on the schedule
annexed to and constituting a part of the Note, or on other appropriate records
of the Lender, the date and amount of each Advance, and the date and amount of
each payment or prepayment of principal thereof, and any recordation thereof
shall constitute prima facie evidence of the accuracy of the information so
recorded; provided, however, that failure by the Lender to make any recordation
or other error therein shall not
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
limit or otherwise affect the obligations of the Borrower hereunder. The Note
shall be dated the date hereof, be entitled to the benefits of this Agreement,
be stated to mature on the Loan Termination Date and provide for the accrual and
payment of interest in accordance with Section 2.4 hereof.
2.6 Repayment of the Loan.
(a) Nonrecourse Obligation. The Lender and the Borrower hereby
agree that any and all amounts due hereunder or under the Note shall be payable
solely from amounts, if any, distributed to the Borrower by the General Partner
in respect of amounts released to the General Partner from the GP's Special
Reserve as provided in the Partnership Agreement (amounts so distributed to the
Borrower, "Released Amounts"). The Lender's sole recourse for payment of amounts
due hereunder shall be to the Released Amounts, if any, and the Lender shall
have no right or recourse to payment from any other source or from any other
assets of the Borrower or any affiliate of the Borrower, and the Borrower shall
have no obligation to repay amounts advanced hereunder or the interest thereon
from any source of funds other than from the Released Amounts, if any. Borrower
shall create and maintain in favor of the Lender a first priority security
interest in the Released Amounts.
(b) Repayment. The principal amount of all amounts advanced
hereunder (except to the extent previously repaid), together with interest
accrued and compounded but unpaid, shall be due and payable on the first to
occur of (i) the Loan Termination Date and (ii) the next business day following
the date on which the Borrower receives the Released Amounts.
(c) Optional Prepayment. The Borrower, at its option, may
prepay the loan in whole or in part at any time together with accrued but unpaid
interest on the portion being prepaid to the date of such prepayment, all
without premium or penalty or other charges.
2.7 Payment Procedures. All Advances made hereunder shall be payable to
the Borrower in United States dollars by wire transfer of immediately available
funds no later than 2:00 p.m. prevailing New York City time on the Loan Advance
Date to such account as the Borrower may from time to time, by notice to the
Lender, direct, and all sums payable to the Lender hereunder shall be payable in
United States dollars by wire transfer of immediately available funds no later
than 2:00 p.m. prevailing New York City time on the day on which such sum is
due, to such account as the Lender may from time to time, by notice to the
Borrower, direct.
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
Section 3. Representations and Warranties of the Borrower
Borrower hereby represents and warrants to the Lender as follows:
(a) Organization; Qualification. The Borrower is a limited
liability company duly organized and validly existing under the laws of the
State of Delaware. The Borrower is duly qualified or authorized to transact
business and is in good standing under the laws of all jurisdictions in which it
conducts business or owns property, except for jurisdictions as to which the
failure to be so qualified or authorized could not reasonably be expected to
have a material adverse effect on the Borrower or its ability to perform its
obligations hereunder.
(b) Authority; Enforceability. The Borrower has all requisite
power and authority to own its property and assets, and to conduct its business
as presently conducted, and has full power and authority to execute, deliver and
perform this Agreement and every other agreement and document to be delivered in
connection herewith and to perform all of its obligations hereunder and
thereunder. This Agreement and all other instruments to be delivered in
connection herewith by the Borrower constitute, or, upon execution thereof by
the Borrower and the other parties thereto (if any), will constitute, valid,
legal and binding obligations of the Borrower, enforceable against the Borrower
in accordance with the respective terms hereof and thereof, except as the
enforceability hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally or by the application of general equitable
principles.
Section 4. Conditions Precedent
The obligation of the Lender to make each Advance hereunder is subject
to (a) the receipt by the Lender from the Borrower of a written request as
provided in Section 2.03 hereof, and (b) there not then existing an Event of
Default described below.
Section 5. Default and Remedies
5.1 Events of Default. The occurrence and continuation of one or more
of the following events (whatever the reason for such event) shall be an event
of default hereunder (each, an "Event of Default"):
(a) the Borrower shall (i) apply for or consent to
the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial
part of its property, (ii) make a general assignment for the benefit of
its creditors, (iii) commence a voluntary case under federal bankruptcy
laws (as now or hereafter in effect), or (iv) file a
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts; or
(b) a proceeding or case shall be commenced, without
the application or consent of the Borrower in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution
or winding-up, or the composition or readjustment of its debts, (ii)
the appointment of a trustee, receiver, custodian, liquidator or the
like of the Borrower or of all or any substantial part of its assets or
(iii) similar relief in respect of the Borrower under any law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against the
Borrower shall be entered in an involuntary case under federal
bankruptcy laws (as now or hereafter in effect); or
(c) all of the Licensing Agreements shall have
been terminated as a result of the default of the Project Companies; or
(d) the Borrower does not apply the Released Amounts
to repay the Loan and interest thereon.
5.2 Remedies.
(a) If any Event of Default as described in Section 5.1 above
has occurred and is continuing the Lender's obligation to make Advances
hereunder shall be suspended until such Event of Default is cured.
(b) If, at any time, an Event of Default shall have occurred
and be continuing, then the Lender may, without accelerating the maturity of the
loan or taking any action to realize payment from any sources other than
Released Amounts, take such actions and seek such remedies as may be available
at law or in equity to enforce the Borrower's obligations hereunder.
Section 6. Certain Covenants.
6.1 Covenant of Borrower. The Borrower covenants that it will not,
without the prior written consent of the Lender, permit the General Partner to
agree to amend Section 5.12 of the Partnership Agreement if the effect thereof
would be to expand the purposes to which amounts in the G P's Special Reserve
would be applied.
6.2 Covenant of Lender. The Lender covenants that it will not
without the prior written consent of the Borrower, amend the
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
Carbon Resources Loan Agreement or grant any waivers thereunder unless this
Agreement is being amended contemporaneously in the same manner or unless the
same waiver is contemporaneously granted hereunder.
Section 7. Amendments and Miscellaneous.
7.1 Amendments in Writing. The provisions of this Agreement may not be
waived, altered, modified, amended, supplemented or terminated in any manner
whatsoever except by written instrument signed by the parties hereto.
7.2 Notices. All notices, requests, consents, approvals, elections,
demands and other communications required or permitted under the terms and
provisions hereof shall, unless otherwise specified, be in writing, and shall be
given in person or by means of registered or certified mail or by courier, in
each case addressed to the parties at the following addresses or at such other
address as each party may specify in writing to the other parties hereto from
time to time:
Borrower: X.X. Xxxx Capital, L.L.C.
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Lender: Covol Technologies, Inc.
0000 Xxxxx Xxxxxxxx Xxxx
Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any such communication shall become effective upon receipt.
7.3 Entire Agreement. This Agreement constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof and supersedes
any prior expressions of intent or understandings with respect to such subject
matter. This Agreement may not be altered, amended, modified or otherwise
changed in any manner whatsoever except by a writing duly executed and delivered
by each of the parties hereto.
7.4 Severability of Provisions. Any provision of this Agreement that
may be determined by competent authority to be prohibited or unenforceable in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. To the extent permitted by Applicable Law, each of the
parties hereto hereby waives any provision of law that renders any provision
hereof prohibited or unenforceable in any respect.
7.5 Limitation of Interest. Notwithstanding anything in this Agreement
to the contrary, the obligation of the Borrower
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
hereunder to pay interest on the Loan shall be subject to the limitation that no
payment of such interest shall be required to the extent that receipt of such
payment would be contrary to applicable usury laws.
7.6 GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, OTHER
THAN ANY PROVISION THEREOF THAT WOULD PERMIT OR REQUIRE THE APPLICATION OF THE
LAWS OF ANY OTHER JURISDICTION.
THE BORROWER AND THE LENDER EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF VIRGINIA, THE
COURTS OF THE UNITED STATES OF AMERICA FOR THE EASTERN DISTRICT OF VIRGINIA, AND
APPELLATE COURTS FROM ANY THEREOF. EACH WAIVES ANY OBJECTION TO THE VENUE OF ANY
SUCH ACTION OR ANY CLAIM IT MAY HAVE TO FORUM NON CONVENIENS. EACH PARTY HERETO
AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION MAY BE EFFECTED BY MAILING A
COPY THEREOF, REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, IN THE MANNER SET
FORTH IN SECTION 7.2 HEREOF AND THAT NOTHING HEREIN SHALL AFFECT THE RIGHT OF
EITHER PARTY TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR SHALL LIMIT THE RIGHT OF ANY PARTY TO SUCH IN ANY OTHER JURISDICTION.
7.7 Successors and Assigns. This Agreement shall be binding on and
inure to the benefit of each of the parties hereto and their respective
successors and permitted assigns. No party hereto may assign any of its rights
or delegate any of its obligations hereunder without the prior written consent
of the non-assigning party, which consent shall not be unreasonably withheld,
except that, with notice to but without need for the consent of the other party,
(a) if the Lender assigns all of its rights and obligations under the Licensing
Agreements, the Lender shall assign its rights and obligations hereunder (and
under the Note) to the entity that assumes all of its rights and obligations
under the Licensing Agreements, and (b) if the Borrower sells or transfers its
membership interest in the General Partner, the Borrower shall assign all of its
rights and obligations hereunder to the person assuming its membership interest
in the General Partner, and any such assignee of the Borrower shall (i) execute
and deliver to the Lender a Note in the form of Exhibit A hereto (and upon
receipt of such Note, the Lender shall cancel the Note of the Borrower and
deliver the cancelled Note to the Borrower), and (ii) such assignee shall take
such measures as may be necessary or appropriate (or as the Lender may
reasonably request) to maintain for the benefit of the Lender the security
interest in the Released Amounts.
7.8 Headings. The division of this Agreement into sections and the
insertion of headings are for convenience of reference
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
only and shall not affect the construction or interpretation of this Agreement.
7.9 Counterpart Execution. This Agreement may be executed in any number
of counterparts and by each of the parties hereto in separate counterparts, all
such counterparts together constituting but one and the same instrument. This
Agreement shall be effective, and shall be binding on any party hereto, on the
date first above written.
7.10 Limitation of Liability. The repayment of the Loan and interest
thereon shall be payable solely from Released Amounts and from no other source
and, in addition, in no event shall any member in the Borrower, nor any
Affiliate thereof, nor any officer, director, employee or agent of any thereof,
nor any holder of any equity interest in the Borrower or any member or Affiliate
thereof, be personally liable or obligated for such liabilities and obligations
of the Borrower.
[REMAINDER OF PAGE IS BLANK]
* This Exhibit contains confidential material which has been omitted pursuant to
a Confidential Treatment Request and replaced by asterisks. The omitted
information has been filed separately with the Securities and Exchange
Commission.
IN WITNESS WHEREOF, each of the Borrower and the Lender,
intending to be legally bound, has caused this Agreement to be duly executed by
its representative thereunto duly authorized as of the date and year first above
written.
X.X. XXXX CAPITAL, L.L.C.,
as Borrower
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
COVOL TECHNOLOGIES, INC.,
as Lender
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: V.P. Administration
EXHIBIT A TO
LOAN AGREEMENT
[FORM OF NOTE]
PROMISSORY NOTE
$ * Fairfax, Virginia
April 21, 1998
FOR VALUE RECEIVED, the undersigned, X.X. XXXX CAPITAL,
L.L.C., a Delaware limited liability company (the "Borrower"), hereby
unconditionally promises to pay to the order of COVOL TECHNOLOGIES, INC. (the
"Lender"), located at 0000 Xxxxx Xxxxxxxx Xxxx, Xxxx, Xxxx 00000, in lawful
money of the United States and in immediately available funds, the principal
amount of $ *, or, if less, the aggregate unpaid principal amount of the
Advances in respect of Loan made by the Lender pursuant to the Loan Agreement
(as hereinafter defined), which sum shall be due and payable from time to time
in the amounts and on the dates specified in the Loan Agreement. The Borrower
further agrees to pay interest in like money on the unpaid principal amount
hereof from time to time outstanding (including capitalized interest as
specified in Section 2.6 of the Loan Agreement) as specified in the Loan
Agreement.
Capitalized terms used herein without definition have the
meanings assigned to them in the Loan Agreement.
The holder of this Note is authorized to record, on the schedule
annexed hereto and made a part hereof, or on other appropriate records of the
Lender, the date and amount of each Advance pursuant to Loan Agreement and the
date and amount of each payment or prepayment of principal thereof; provided,
however, that failure by the Lender to make any recordation or other error
therein shall not limit or otherwise affect the obligations of the Borrower
hereunder.
This Note is the Note referred to in the Loan Agreement, dated
as of April 21, 1998, by and between the Lender and the Borrower (as the same
may be amended, modified or supplemented from time to time, the "Loan
Agreement"). This Note is entitled to the benefits of the Loan Agreement. This
Note is subject to prepayment as provided in the Loan Agreement.
The obligation of the Borrower is absolute and unconditional
to pay the principal of and interest on this Note at the place, at the
respective times, and in the currency herein prescribed. The Borrower waives any
and all right to assert any defense (other than performance hereunder), set-off,
counterclaim or crossclaim of any nature whatsoever with respect to this Note or
the obligations of the Borrower hereunder in any action of proceeding brought by
the Lender to collect this Note, or any portion hereof. The Borrower waives
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note.
Recourse for the liabilities and obligations of the Borrower
under this Note and the Loan Agreement shall be limited to the Released Amounts
received by Borrower, and in no event shall any member in the Borrower, nor any
Affiliate thereof, nor any officer, director, employee or agent of any thereof,
nor any holder of any equity interest in the Borrower or any member or Affiliate
thereof, be personally liable or obligated for such liabilities and obligations
of the Borrower.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT GIVING
EFFECT TO ANY PROVISIONS THEREOF THAT PERMIT OR REQUIRE THE APPLICATION OF THE
LAWS OF ANY OTHER JURISDICTION.
X.X. XXXX CAPITAL, L.L.C.
By:
------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Scheduel 1 to
Promissory Note
SCHEDULE OF ADVANCED AND REPAYMENTS
Date of Amount
Date of Amount of Repayment of Notations
Advance Advance Made of Advances Repayment Made by
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