Exhibit 10.8
LOAN AGREEMENT
Agreement made this 5th day of July, 2006 by and between Able Energy,
Inc., a corporation formed under the laws of the State of Delaware having an
address at 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Able"), and All
American Plazas, Inc., a corporation formed under the laws of the Commonwealth
of Pennsylvania having an address at X.X. Xxx 000 Xxxxxx, Xx. 00000 ("All
American").
WHEREAS, as of the date hereof All American has entered into an
Agreement and Plan of Share Exchange (the "Share Exchange Agreement") with CCI
Group, Inc. ("CCIG") providing for the exchange of the common stock and common
stock equivalents of CCIG's shareholders (the "CCIG Stock") for shares of a
class of preferred stock of All American (the "All American Preferred Stock")
which will upon closing of the Share Exchange Agreement be automatically
convertible on a one for one basis into shares of the common stock of Able owned
by All American;
WHEREAS, pursuant to the Share Exchange Agreement All American's wholly
owned subsidiary, All American Realty and Construction Corp., has agreed to
operate and manage the business of CCIG (the "Business"), including a luxury
resort property known as The Beach House-Barbuda (the "Property") located on the
island of Barbuda, West Indies owned by CCIG's wholly owned subsidiary, Beach
Properties Barbuda Limited, during the period from the date the Share Exchange
Agreement was executed until the date of closing of the Agreement (the
"Operating Period");
WHEREAS, All American will be responsible to pay the expenses (the
"Operating Expenses") of the Business during the Operating Period and, in
addition, All American is required to pay certain of CCIG's Outstanding Company
Obligations as that term is defined in the Share Exchange Agreement; and
WHEREAS, Able has entered into a loan agreement with Laurus Master Fund,
Ltd. ("Laurus") to borrow $1,000,000 most of the proceeds of which will be
advanced on behalf or loaned to All American to fund the payment of the
Operating Expenses and Outstanding Company Obligations in exchange for the
benefits and obligations of All American to Able as set forth herein.
NOW, therefore upon the mutual covenants and agreements hereinafter
contained and intending to be legally bound, the parties hereby agree as
follows:
1. LOAN
Able will advance on behalf of or loan to All American (the "Loan") the
sum of $905,000 from the gross amount of the loan made to it by Laurus. The Loan
will bear interest at the prime rate as published in the Wall Street Journal on
the date the Loan is funded plus two percent (2%) and will be evidenced by a
promissory note made by All American to Able (the "Note").
2. OPTION.
(a) In consideration of Able making the Loan to All American to pay the
Operating Expenses and Outstanding Company Obligations, Able at its sole
discretion shall have an option (the "Option") during the term of this
Agreement, as hereinafter defined in paragraph 2, to cause All American to
transfer and assign to Able the right to acquire eighty percent (80%) of the
CCIG Stock that All American may acquire or has acquired pursuant to the Share
Exchange Agreement.
(b) Upon the exercise of the Option, Able shall (i) provide eighty
percent (80%) of the shares of Able common stock to be issued to the
shareholders of CCIG in the event the option is exercised prior to such shares
or the equivalent number of All American Preferred Stock being delivered
pursuant to the Share Exchange Agreement or (ii) in the event shares of Able
common stock have been delivered and issued to the shareholders of CCIG pursuant
to the Share Exchange Agreement, issuing eighty percent (80%) of such Able
shares to All American.
(c) In the event that Able exercise the Option, the principal amount of
the Loan and Note shall be reduced by eighty percent (80%) and such principal
amount shall be deemed fully paid and satisfied. The remaining principal balance
of the Loan and Note and all outstanding and accrued interest on the Loan shall
be due and payable pursuant to the terms of the Note.
3. TERM
The principal balance of the Loan together with all accrued interest
thereon shall be due and payable one year from the date of Able's exercise of
the Option or its declaration that it does not intend to exercise the Option,
whichever occurs earlier, but in no event later than two years from the date
hereof.
4. EXCLUSIVITY. For a period of ten (10) years from the date hereof,
Able shall be the sole and exclusive provider of all sources of liquid energy
used by The Beach House - Barbuda or any other properties hereafter acquired or
operated by CCIG.
5. OPERATING PERIOD
(a) All American will be solely responsible for the operation of the
Business and Property during the Operating Period.
(b) All losses, liabilities, obligations, damages, costs and expenses
based upon, attributable to or resulting from the operation of the Business and
Property or incurred by All American during the Operating Period shall be the
sole responsibility and liability of All American Realty. Able shall not be in
any manner liable or responsible for such losses, liabilities, obligations,
damages, costs and expenses.
6. COVENANTS
During the Term of this Agreement, All American shall
(a) Not dispose of, transfer, assign, mortgage, or in any manner
encumber the CCIG Stock;
(b) Have the right to vote the CCIG Stock and all other rights with
respect thereto until such time that Able Exercises the Option;
(c) Afford Able and its representatives reasonable access, after
appropriate notice to All American, complete access to All American's books and
records and other documents, data financial and operating information relating
to the Business and Property as Able may reasonably request. Any such
investigation and examination shall be conducted during regular business hours
and under reasonable circumstances, and All American shall cooperate fully
therein;
(d) Conduct the Business only in the ordinary course of business;
(e) Maintain the fixed assets essential to the Business's operations and
the Property in good operating repair and condition, subject to normal wear and
tear, and make repairs and replacements in accordance as necessary;
(f) Notify Able concerning any material changes to status of the
business, operations, and finances of CCIG;
(g) Continue to pay and satisfy CCIG's liabilities in the ordinary
course of business;
(h) Continue to maintain in full force and effect or renew or replace
all policies of insurance now in effect which cover the assets of the Business
and Property and give all notices and present all material claims under all
policies of insurance in due and timely fashion;
(i) Not enter into any material leases or contracts for the purchase or
sale of products, utilities, or services, except (A) those made in the ordinary
course of business or (B) those which may be canceled without liability upon not
more than thirty (30) days' notice;
(j) Not create or incur any indebtedness for borrowed money or assume
directly or indirectly any debt, obligation, or liability (whether absolute or
contingent, whether directly or as surety or guarantor, and whether or not
currently due or payable) which will exist after the Term, except in the
ordinary course of business consistent with past business practices and policies
and as required for the operation of the Business and the Property;
(k) Not make any material change in the accounting methods, practices,
policies, principles, or procedures of CCIG;
(l) Not enter into any lease, sublease, or contract, regarding the
acquisition, leasing, or occupancy of any real estate, equipment, vehicles, or
other items relating to the Business and Property except in the ordinary course
of business;
(m) Not sell, convey, lease, abandon, or otherwise dispose of, or grant,
suffer, or permit any lien or encumbrance upon, the Property or any of the
Business's material assets, except on arm's length terms or in the ordinary
course of business; and
(n) Not enter into or modify in any manner any material contract to
which CCIG is a party except in the ordinary course of business.
7. INDEMNIFICATION
All American shall indemnify and hold Able and its directors, officers,
employees, affiliates, agents, successors and assigns harmless from and against:
(a) any and all losses, liabilities, obligations, damages, costs and
expenses based upon, attributable to or resulting from the operation of the
Business and Property or incurred by All American during the Term, and
(b) any and all notices, actions, suits, proceedings, claims, demands,
assessments, judgments, costs, penalties and expenses, including attorneys' and
other professionals' fees and disbursements incident to any and all losses,
liabilities, obligations, damages, costs and expenses with respect to which
indemnification is provided hereunder
8. GENERAL PROVISIONS
(a) FURTHER ASSURANCES. Each party, will upon request of the
other, execute and deliver all instruments and documents of further assurance or
otherwise, and perform all acts and things, which may be required to carry out
its obligations hereunder and to consummate and complete the transactions
contemplated by this Agreement.
(b) NOTICES. Any notice or other communication under the
provisions of this Agreement shall be in writing, and shall be given by postage
prepaid, registered or certified mail, return receipt requested, by hand
delivery with an acknowledgment copy requested, or by the Express Mail service
offered by the United States Post Office or by any reputable overnight courier
service, directed to the addresses set forth above, or to any new address of
which any party hereto shall have informed the others by the giving of notice in
the manner provided herein. Such notice or communication shall be effective, if
sent by mail, three (3) days after it is mailed within the continental United
States; if
sent by Express Mail service or overnight courier service, one day after it is
mailed; or by hand delivery, upon receipt.
(c) GOVERNING LAW. This agreement and the transaction documents shall be
governed by and construed in accordance with the laws of the State of New Jersey
without regard to principles of conflicts of law. In any dispute arising
hereunder or in connection with this agreement the parties agree to submit to
the jurisdiction of the state courts located in New Jersey.
(d) PARTIES-IN-INTEREST. This agreement shall be binding upon and inure
to the benefit of the parties hereto, their respective heirs, administrators,
executors, successors and assigns.
(e) ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes and
contains the entire Agreement of the parties and supersede any and all prior
negotiations, correspondence, understandings and agreements between the parties
respecting its subject matter. This Agreement may not be amended except by a
written agreement executed by the party to be changed with the amendment.
(f) WAIVER. Any of the terms and conditions of this Agreement, and any
inaccuracies in any of the representations or warranties contained herein, may
be waived at any time and from time to time, in writing, by such parties as are
entitled to the benefit of such terms, conditions, warranties or
representations. Such waiver shall not constitute or be deemed a waiver of any
other terms, conditions or inaccuracies.
(g) INTERPRETATION. Headings, captions, section or section numbers
appearing in this Agreement are for ease of reference and convenience only, and
shall in no way be deemed to define, modify, affect, limit or describe the
scope, intent or content of this Agreement or of provisions to which they
relate.
(h) SINGULAR OR PLURAL WORDS. Whenever used, the singular pronoun will
include the plural, the plural will include the singular, and the uses of any
gender will include all genders as required or necessary for proper grammatical
reading or as the sense or context requires.
(i) DRAFTING PRESUMPTIONS. Any ambiguity in this Agreement shall not be
construed in accordance with any presumption against the party initially
drafting this Agreement. If any provision of this Agreement may be construed in
two or more ways, such provision shall have the meaning which renders it valid
and enforceable.
(j) SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of the Agreement
or any part hereof, all of which are inserted conditionally on their being valid
in law, and, in the event that any one or more of the words, phrases, sentences,
clauses, sections or subsections contained in this Agreement shall be declared
invalid, this Agreement shall be construed as if such
invalid word or words, phrase or phrases, sentence or sentences, clause or
clauses, section or sections or subsection or subsections had not been inserted.
(k) ASSIGNMENT. This Agreement may be not assigned by Able without the
written consent of All American.
(l) COUNTERPARTS. This Agreement may be executed in several counterparts
and all of such counterparts shall constitute one and the same instrument with
the same force and effect as if all the parties had executed the same document.
Able Energy, Inc. All American Plazas, Inc.
By: s/xxxxxxx X. Xxxxx By: s/xxxxxxx Xxxxxxxxx
------------------ -------------------
Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxxxxxx,
Chief Executive Officer President
