LOAN AGREEMENT
EXHIBIT
10.1
|
THIS LOAN AGREEMENT ("Agreement")
is made effective as of this 24th day
of October, 2018 by AMAZING ENERGY OIL & GAS, CO., a Nevada
company ("Borrower")
and in favor of Xxxxxx Capital, LLC a
Louisiana limited liability company (the "Lender")
RECITALS:
A. Lender
has agreed to lend to Borrower and Borrower has agreed to borrower
from Lender on the terms and conditions set forth in this Agreement
("Loan") Five Hundred Thousand and No/100 Dollars
($500,000.00) ("Loan
Amount"), payable in accordance
with the Promissory Note executed by the Lender and Borrower as of
the date of this Agreement.
B. Lender
is willing to make the Loan on the condition that Borrower, among
other things, joins in the execution and delivery of this
Agreement, a Promissory Note executed at the same time as this
Agreement ("Note"), (the Agreement and Note are together the
"Loan
Documents");
C. Borrower
has issued, to Gulf South Holding, Inc. ("GSHI"), a warrant to
purchase 2,674,576 shares of Borrower's common stock (the
"Warrant").
D. Lender
is the holder of 50,000 shares of the Borrower's Series B Preferred
Stock.
NOW,
THEREFORE, in consideration of the making of the Loan by Lender,
and the covenants, agreements, representations and warranties set
forth in this Agreement, the parties hereby covenant, agree,
represent and warrant as follows.
ARTICLE
I.
CERTAIN DEFINITIONS
"Agreement"
means this Loan Agreem'ent, as the
same may from time to time hereafter be modified, supplemented or
amended.
"Borrower"
shall mean Amazing Energy Oil &
Gas, Co., a Nevada corporation. Borrower shall also mean any
successor or assign of Amazing Energy Oil & Gas, Co., including
any successor created by merger, consolidation or other
reorganization. Borrower is sometimes also referred to as Payor in
other of the Loan Documents.
"Business Day"
means days on which banks in Dallas,
Texas are open for business.
"Cashless
Exercise" means the exercise of
the amended Warrant pursuant to the "cashless exercise" provisions
contained in the Amended Warrant attached hereto as Exhibit "B"
hereto.
"Closing Date"
means October 22,
2018.
"Event of
Default" shall have the meaning
as set forth in Section 5.1
"Governmental
Authority" means any national,
federal, state, regional or local government, or any other
political subdivision of any of the foregoing, in each case with
jurisdiction over Borrower exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining
to the government.
-1-
|
"Lender"
shall mean Xxxxxx Capital, LLC a
Louisiana limited liability company. Lender shall also mean any
successor or assign of Bories Capital. Lender is sometimes also
referred to Payee in other of the Loan
Documents.
"Loan
Documents" shall mean this Loan
Agreement, the Note and any amendments or supplements to such
documents.
"Maturity Date"
shall have the meaning as set forth in
the Note.
"Note"
means and refers to the promissory note evidencing the Loan, dated
as of the date hereof, made by Borrower to Lender, as such
promissory note may be modified, amended, supplemented, extended or
consolidated in writing, and any note(s) issued in exchange
therefore or in replacement thereof. A form of the Note is attached
hereto as Exhibit "A."
"Party"
means a party to this
Agreement.
ARTICLE II.
GENERAL TERMS
2.1
Loan. Lender shall loan Borrower the principal amount of
Five Hundred Thousand and No/100
Dollars ($500,000.00), and Borrower shall borrow from and repay
such amount to Lender, with interest, as is more fully set forth in
the Note.
2.2
Additional
Consideration. As additional
consideration for Lender making the Loan to
Borrower,
Borrower agrees as follows:
(a) Borrower
agrees to amend the terms of the Warrant, as set forth in
Exhibit "B,"
to lower the exercise price to forty
cents ($.40) per share, with the holder's option for a Cashless
Exercise, and to extend the expiration date of the Warrant to
April 1, 2024;
(b) Borrower
agrees to amend the terms of the Series B Preferred Stock
to:
(i) Eliminate
the Borrower's ability to call the Series B Preferred Stock until
April 1, 2024; and
(ii) Lender
may convert the Series B Preferred Stock into warrants to purchase
Borrower's common stock, pursuant to the rights and preferences
applicable to the Series B Preferred Stock, beginning April 1, 2019
and continuing until April 1, 2024; and
(iii) The
exercise price applicable to any warrants, issued upon conversion
of any Series B Preferred Stock, shall be amended to forty cents
($.40) per share, with the holder's option for a Cashless Exercise.
The form of warrant issuable upon conversion of the Series B
Preferred Stock shall be substantially the same as Exhibit "B". A
copy of the amended Series B Preferred Stock rights and
preferences is attached hereto as Exhibit "C"
ARTICLE III.
DEFAULTS AND REMEDIES
3.1
Event
of Default. The following shall
constitute an Event of Default:
-2-
|
(a) if
any payment due under the Note is not paid within thirty (30)
business days of Borrower receiving written notice that such
payment is late.
(b) if
any representation made in this Agreement, any other Loan Document
or any other document in connection with the Loan shall be false
when made or shall be untrue when made in any material
respect.
(c) if
Borrower shall breach any term or covenant contained in this
Agreement or in any other Loan Document.
3.2
Remedies. Upon
the occurrence of an Event of Default (including, without
limitation, a breach
of this Agreement or other Loan Document), all or any one or more
of the rights, powers and other remedies available to Lender
against Borrower under this Agreement or any of the other Loan
Documents, or at law or in equity may be exercised by Lender at any
time and from time to time, without notice or demand, whether or
not all or any portion of the indebtedness to Lender shall be
declared due and payable, and whether or not Lender shall have
commenced any action for the enforcement of its rights and remedies
under any of the Loan Documents. Any such actions taken by Lender
shall be cumulative and concurrent and may be pursued
independently, singly, successively, together or otherwise, at such
time and in such order as Lender may determine in its discretion,
to the fullest extent permitted by law, without impairing or
otherwise affecting the other rights and remedies of Lender
permitted by law, equity or contract or as set forth herein or in
the other Loan Documents.
ARTICLE IV.
MISCELLANEOUS
4.1
No Third Parties Benefited. This Agreement is between and for
the sole benefit of Borrower
and Lender, and Lender's successors and assigns, and creates no
rights whatsoever in favor of any other person or entity and no
other person or entity will have any rights to rely
hereon.
4.2
Notices All notices or other written
communications hereunder will be deemed to have
been
properly given (i) upon delivery, if delivered in person or by
facsimile transmission with receipt of an electronic confirmation
thereof, (ii) one Business Day after having been deposited for
overnight delivery with any reputable overnight courier service, or
(iii) three Business Days after having been deposited in any post
office or mail depository regularly maintained by the U.S. Postal
Service and sent by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
If
to Borrower:
|
Amazing
Energy Oil & Gas, Co.
Attn:
Xxxxxxx XxXxxxxx, III, CEO
0000
X. Xxxxx Xxxx, Xxxxx 0000
Xxxxx,
XX 00000
Phone:
(000) 000-0000
|
If to Lender:
|
Bodes
Capital, LLC
Attn:
Xxxxxx X. Xxxxxx
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Phone:
(000) 000-0000 X 000
Fax:
(000) 000-0000
|
4.3
Additional Documents. Each Party shall execute such
additional documents as may reasonably
be requested by the other Party to effectuate the provisions of
this Agreement.
-3-
|
4.4
Assignment. No Party may
assign its rights or obligations under this Agreement without
the prior written consent of the other Party. Any
purported assignment without the other Party's prior written
consent will be void ab
initio.
4.5
Authorization;
Binding Effect. Each Party
represents to the other that its execution of this
Agreement has been authorized by all necessary corporate action and
that this Agreement constitutes a binding obligation of such Party.
Each individual who executes this Agreement on behalf of a Party
represents to all Parties that he or she is authorized to do so.
This Agreement will bind each Party's successors and permitted
assigns.
4.6
Attorneys'
Fees. If a Party is in default
under this Agreement, the other Party will have
the
right, at the expense of the defaulting Party, to retain an
attorney to make demand, enforce remedies, or otherwise protect or
enforce the rights of the non-defaulting Party. A Party in default
shall pay all attorneys' fees and costs so incurred.
4.7
Consents
and Approvals. Unless
specifically stated to the contrary in this Agreement
(i.e., by stating that a Party's consent or approval may
be granted or withheld in its sole discretion), whenever any
provision of this Agreement requires a Party to provide its consent
or approval, such Party will not unreasonably condition, withhold
or delay such consent or approval.
4.8
Consent
Required to Amend or Waive. No
amendment or modification of any provision
of this Agreement will be effective unless made in writing and
signed by each of the Parties.
4.9
Counterparts.
This Agreement may be executed in
counterparts each of which will be deemed
an original, and such counterparts when taken together shall
constitute but one agreement.
4.10
Entire
Agreement. This Agreement sets
forth the entire understanding of the Parties with respect to the
subject matter of this Agreement and supersedes all prior
agreements and understandings between the Parties regarding the
subject matter of this Agreement. All exhibits and schedules
referenced in, and attached to, this Agreement are incorporated
into, and constitute a part of, this Agreement.
4.11
Governing
Law; Consent to Jurisdiction. This Agreement and its interpretation and
enforcement are governed by the laws of the state of Texas. Each
Party agrees that venue for any dispute arising out of or in
connection with this Agreement will be in Collin County, Texas and
each Party waives any objections it may now or hereafter have
regarding such venue.
4.12
No
Waiver. No waiver by any Party
of any right or default under this Agreement will be effective
unless in writing and signed by the waiving Party. No such waiver
will be deemed to extend to any prior or subsequent right or
default or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
4.13
Relationship
of the Parties. The
relationship of the Parties is strictly one of Borrower and Lender.
This Agreement is neither intended to, nor will it be construed as,
an agreement to create a joint venture, partnership, or other form
of business association between the Parties.
4.14
Severability.
If for any reason any provision of
this Agreement is determined by a tribunal of competent
jurisdiction to be legally invalid or unenforceable, the validity
of the remainder of the Agreement will not be affected and such
provision will be deemed modified to the minimum extent
necessary to make such provision consistent with applicable law
and, in its modified form, such provision will then be enforceable
and enforced.
-4-
4.15
Terminology.
Unless specifically indicated to the
contrary: (i) wherever from the context it appears appropriate,
each term stated in either the singular or the plural will include
the plural and the masculine gender will include the feminine and
neuter genders; (ii) the term "or" is not exclusive; (iii) the term
"including" (or any form thereof) will not be limiting or
exclusive; (iv) the words "Agreement," "herein," "hereof,"
"hereunder," or other words of similar import refer to this
Agreement as a whole, including exhibits and schedules (if any), as
the same may be modified, amended or supplanted. The headings in
this Agreement have no independent meaning.
4.16
Time. Time is of the essence of each provision of this
Agreement. Time periods referred to in this Agreement will be
determined by excluding the day of the event when the period
commences or from which it runs and will expire at 5:00 p.m. (local
time in Dallas, Texas) on the last day included in such
period; provided, however, that if the time for the performance of
any obligation or action under this Agreement expires on a day that
is not a Business Day, the time for performance will be extended to
the next succeeding Business Day.
4.17
Disclaimer—Preparation
of Agreement. This Agreement
was originally prepared by counsel for Borrower. The Parties agree,
however, that this fact shall not create any presumption in favor
or against any Party in respect of the interpretation or
enforcement of this Agreement. Each other Party is advised to have
this Agreement reviewed by independent legal and tax counsel prior
to its execution. By executing this Agreement, each such Party
represents (i) that it has read and understands this Agreement,
(ii) that it has had the opportunity to obtain independent legal
and tax advice regarding this Agreement and (iii) that it has
obtained such independent advice or has freely elected not to do
so.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
BORROWER:
AMAZING ENERGY OIL & GAS, CO., a
Washington limited liability
company,
|
LENDER:
BORIES
CAPITAL, LLC a Louisiana limited
liability
company,
|
By
|
/s/ Xxxxxxx XxXxxxxx, III
|
|
By
|
/s/ Xxxxxx X. Xxxxxx
|
|
Xxxxxxx XxXxxxxx, III, CEO
|
|
|
Xxxxxx X. Xxxxxx, Member
|
|
|
|
|
|
-5-