EXHIBIT 10.4
SECOND AMENDMENT TO LOAN AGREEMENT
This SECOND AMENDMENT TO LOAN AGREEMENT (the "Agreement") is made as of
the day of 2nd day of August, 1998 by and between CAN CAL RESOURCES LIMITED
("Borrower") and XXXX SEQUOIA, CORP. ("Lender").
RECITALS
A. On or about February 12, 1998, Lender and Borrower entered into a
Loan Agreement whereby, subject to the terms and conditions of that agreement,
Lender agreed to provide financing to Borrower.
B. Pursuant to the terms of the Loan Agreement, Borrower executed a deed
of trust in favor of the Lender recorded against certain real property owned by
Borrower located at Pisgah, San Bernardino (the "Deed of Trust"), and Borrower
assigned to Lender all rights to income and profits emanating from that certain
Mining Lease Agreement executed by and between Borrower and Twin Mountain Rock
Venture (the "Mining Lease").
C. On or about May 1, 1998, Borrower received $22,500 from Twin Mountain
Rock Venture pursuant to the terms of the Mining Lease.
D. As of May 15, 1998, Borrower owed Lender the sum of $25,000 as
principal plus accrued interest resulting from Lender's loan to Borrower of
$25,000 (the "Initial obligation") pursuant to the terms of the Loan Agreement.
E. On or about June 9, 1998 the Loan Agreement was amended pursuant to
the terms of an Amendment to Loan Agreement made between Borrower and Lender
(the "First Amendment") and the total present principal amount owed by the
Borrower to Lender including the Initial Obligation is $100,000 (the "Present
Obligation").
F. The Loan Agreement, the Deed of Trust, Mining Lease and First
Amendment will sometimes hereafter be referred to as the "Existing Documents".
G. The Borrower has requested that Lender modify the Existing Documents.
As consideration for the requested modification, the Borrower has agreed to the
terms and conditions as set forth in this Agreement. The Existing Documents and
this Agreement may sometimes hereinafter be referred to as the "Financing
Documents".
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NOW, THEREFORE, WITNESSETH that in consideration of the mutual covenants
and agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower and
Lender agree as follows:
1. Recitals. The Recitals are incorporated into and made a part of
this Agreement.
2. Existing Financing Modification Terms. The Existing Documents shall
be modified as follows:
(a) Additional Loan Amount. On or before November 30, 1998, Lender shall
lend Borrower up to the principal sum of $50,000. This sum plus the Present
Obligation plus interest owed on the Present Obligation and any other cost or
charge owed by Borrower pursuant to this Agreement shall hereafter be referred
to as the "Obligation".
(b) Term. The obligation, including interest and all other charges, is
due and payable July 31, 2001.
(c) Interest Rate. The Obligation shall bear interest at the rate
depicted in the Loan Agreement.
Unless specifically modified herein, the terms and conditions under the
Loan Agreement as amended by the First Amendment shall remain in full force and
effect.
3. Representation and Warranties. In order to induce Lender to enter
into this Agreement, the Borrower, for itself and for its heirs, personal
representatives, successors, and assigns, hereby acknowledges, represents, and
warrants to Lender as follows:
(a) Lender is not required to extend the Borrower any more financing.
(b) The Loan Agreement constitutes the legal, valid and binding
obligation of the Borrower. This Agreement when executed by the Borrower shall
constitute the legal, valid, and binding obligations of such party, enforceable
in accordance with their respective terms.
(c) The Borrower has no defenses, affirmative defenses, setoffs, claims,
counterclaims, actions, or causes of action of any kind of nature whatsoever
against Lender or any of its or their respective past, present, or future
directors, officers, employees, agents, attorneys, legal representatives,
predecessors, affiliates, successors, or assigns, or the Obligation, directly or
indirectly, arising out of, based upon, or in any manner connected with any
transaction, event, circumstance, action, failure to act, or occurrence of any
sort or type, whether known or unknown, which occurred, existed, was taken,
permitted, or begun prior to the execution of this Agreement and occurred,
existed, was taken, permitted, or begun in accordance with, pursuant to, or by
virtue of any of the terms of the Existing Documents.
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(d) There is no litigation, at law or in equity, nor any proceeding
before any federal, state, or other governmental or administrative agency or any
arbitration pending or, to the knowledge of the Borrower, threatened against the
Borrower nor any other litigation or proceeding pending or, to the knowledge of
the Borrower, threatened affecting any collateral in favor of Lender.
(e) All documents, reports, certificates, and statements furnished to
Lender by or on behalf of Borrower in connection with the transactions
contemplated hereby are true, correct, and complete; do not contain any untrue
statement of material fact; and do not omit any fact necessary to make the
information contained therein not misleading.
(f) All taxes, assessments, levies, license fees, permit fees and all
other charges heretofore levied, assessed, confirmed, or imposed upon, or in
respect of, or which might become a lien upon, any collateral in favor of Lender
under the Loan Agreement or the Financing Documents have been paid in full.
(g) Borrower has not received any more money from Twin Mountain Rock
Venture pursuant to the Mining Lease other than the $22,500 referenced in the
Recitals.
The continued validity in all respects of all representations and
warranties made in this Agreement and all other documents delivered by the
Borrower in connection with this Agreement will be a condition precedent to
Lender obligations and agreements created by this Agreement.
4. Events of Default. The occurrence of any one or more of the following
shall constitute an "Event of Default" under this Agreement:
(a) Failure of Borrower to make any payment to Lender on or before the
date on which such payment is due or failure to pay all remaining principal and
interest and all other charges and costs due Lender.
(b) Default by Borrower under any of the Existing Documents or further
default by Borrower under any of the Financing Documents.
(c) Entry of a judgment or filing of a lien against Borrower or any its
properties, which remains unpaid, unstayed, unbonded, undischarged, or
undismissed for a period longer than thirty (30) days.
(d) Failure of Borrower to execute and/or deliver any of the documents
provided for in this Agreement or any other documents required by Lender.
(e) Failure of Borrower to observe or perform any covenant, agreement,
term, or condition of this Agreement or the Financing Documents, as and when
provided herein.
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(f) If any representation or warranty made herein, in the Financing
Documents, or in any report, certificate, financial statement or other
instrument or document furnished in connection with this Agreement or
contemplated hereby, shall prove to have been materially false or misleading on
the date as of which it was made.
(g) If Borrower shall: (U) apply for or consent to or suffer the
appointment of a receiver, trustee, or liquidator for its properties; (V) admit
in writing an inability to pay its debts as they mature; (W) make a general
assignment for the benefit of creditors; (X) file a voluntary petition or a
petition or answer seeking reorganization or an arrangement with creditors or
take advantage of any bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution, or liquidation statute or law, or make or file an answer
admitting material allegations of a petition filed against it in any proceeding
under any such law; (Y) fail to cause to be dismissed any bankruptcy proceedings
commenced against it within sixty (60) days after commencement of the same; or
(Z) have entered against it an order, judgment, or decree of any court of
competent jurisdiction, approving a petition seeking reorganization of assets or
appointing a receiver, trustee, or liquidator for any assets.
5. Remedies.
(a) Immediately upon the occurrence of any Event of Default, the
obligation and agreements of Lender set forth in this Agreement shall terminate
and Lender shall have the right to exercise any and all rights and remedies
available to it hereunder, under the Financing Documents, and under applicable
law to the same extent as though this Agreement had not been executed, without
regard to any notice or cure period contained therein or otherwise available.
(b) All rights and remedies available to Lender under any of the
Existing Documents, and applicable law may be asserted concurrently,
cumulatively, or successively, from time to time, as long as any indebtedness or
obligations under the Financing Documents shall remain unpaid or outstanding.
6. Cross-Default. Any default under this Agreement, the Loan Agreement,
the First Amendment or any of the Financing Documents shall constitute an event
of default under all other agreements, financing statements or documents related
to the transaction referenced herein.
7. Release and Waivers. Borrower, for itself and its heirs, personal
representatives, successors, and assigns, hereby jointly and severally,
knowingly and voluntarily RELEASES, DISCHARGES, and FOREVER WAIVES and
RELINQUISHES any and all claims, demands, obligations, liabilities, defenses,
affirmative defenses, setoffs, counterclaims, actions, and causes of action of
whatsoever kind or nature, whether known or unknown, which he or it has, may
have, or might have or may assert now or in the future against Lender directly
or indirectly, arising out of, based upon, or in any manner connected with any
transaction, event, circumstance, action, failure to act, or occurrence of any
sort or type, whether known or unknown, which occurred, existed, was taken,
permitted, or begun prior to the execution of this Agreement and occurred,
existed, was taken, permitted, or begun in accordance with, pursuant to, or by
virtue of the transaction referenced herein
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or any of the terms of any of the Existing Documents, or which was related or
connected in any manner, directly or indirectly, to the obligation, the First
Amendment, the transaction referenced herein or the Existing Documents, or any
part thereof. Borrower hereby acknowledges and agrees that the execution of this
Agreement by Lender shall not constitute an acknowledgment of or admission by
Lender of the existence of any such claims or of liability for any matter or
precedent upon which any liability may be asserted. Borrower hereby further
acknowledges and agrees that, to the extent that any such claims may exist, they
are of a speculative nature so as to be incapable of objective valuation and
that, in any event, the value to the Borrower of the covenants and obligations
of Lender contained in this Agreement and the other documents and instruments
executed and delivered in connection herewith substantially and materially
exceeds any and all value of any kind or nature whatsoever of any such claims.
In connection with the general release set forth above, Borrower, for
themselves and Borrower's Affiliates, and each of them, hereby waive and
relinquish all rights and benefits afforded under the provisions of Section 1542
of the California Civil Code, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR."
8. Waiver of Jury by Trial. Each party to this Agreement agrees that any
suit, action, or proceeding brought or instituted by any party hereto or any
successor or assign of any party on or with respect to this Agreement, any of
the documents executed in connection with this Agreement, or any of the
Financing Documents or any event, transaction or occurrence arising out of or in
any way connected therewith, or the dealings of the parties with respect
thereto, shall be tried only by a court and not a jury. EACH PARTY HEREBY
EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR
PROCEEDING. Borrower acknowledges and agrees that this provision is a specific
and material aspect of this Agreement between the parties and that Lender would
not agree to the restructure of obligations, extension of the time of payment,
or forbearance from exercising its rights and remedies if this waiver of jury
trial provision were not a part of this Agreement.
9. Miscellaneous.
(a) No Oral Modifications. No modification or waiver of any provision of
this Agreement, any documents executed in connection with this Agreement, the
Existing Documents, and no consent by Lender to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be in writing
and then such waiver or consent shall be effective only in the specific instance
or for the purpose for which given. No notice to, or demand upon the Borrower in
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any case shall entitle Borrower to any other or further notice or demand in the
same, similar, or other circumstances.
(b) No Release or Discharge; No Novation. Nothing contained in this
Agreement is intended to or shall act to nullify, discharge, release, or
extinguish, in whole or in part, any or all of the obligations or indebtedness
under the Existing Documents or to waive or release any collateral securing the
loan referenced herein or discharge any guarantor thereof, nor shall this
Agreement and the documents executed in connection herewith be deemed or
considered to operate as a novation of any of the Existing Documents, except as
otherwise provided in this Agreement and the documents executed in connection
herewith. This Agreement represents a modification, amendment, restatement, and
continuation of the contractual obligations and indebtedness of the Borrower
under certain of the Financing Documents. This Agreement and the documents
executed in connection herewith set out the terms and conditions under which the
Borrower will satisfy its obligations to Lender pursuant to the Financing
Documents. Except to the extent of any express conflict with this Agreement and
except to the extent modified by this Agreement, each and all of the terms and
conditions of the Existing Documents shall remain in full force and effect.
(c) Interpretation. To the extent, if any, that any of the terms and
provisions of this Agreement or of any of the other documents or instruments
executed and delivered in connection herewith are inconsistent with any of the
terms and provisions of the Existing Documents, this Agreement and the documents
and instruments executed and delivered in connection herewith shall control.
(d) Applicable Law. The performance, construction, and enforcement of
this Agreement and each of the other Financing Documents shall be governed by
the laws of the State of California.
(e) Survival; Successors and Assigns. All covenants, agreements,
representations, and warranties made in this Agreement and in the Financing
Documents shall survive settlement and shall continue in full force and effect.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party,
but this shall not be deemed to permit assignment by the Borrower of any or all
of its interests in the Deed of Trust or any part thereof. All covenants,
agreements, representations, and warranties by or on behalf of the Borrower that
are contained in this Agreement of any of the Financing Documents shall inure to
the benefit of Lender and its successors and assigns and shall bind the
Borrower, and its respective heirs, personal representatives, successors, and
assigns. Borrower may not assign this Agreement or any of its rights hereunder.
(f) Severability. If any term, provision, or condition, or any part
thereof, of this Agreement or of any of the Financing Documents shall for any
reason be found or held to be invalid or unenforceable by any court or
governmental agency of competent jurisdiction, such invalidity or enforceability
shall not affect the remainder of such term, provision, or condition or any
other term, provision, or condition, and this Agreement, and any Financing
Document shall survive and be
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construed as if such invalid or unenforceable term, provision, or condition had
not been contained therein.
(g) Merger and Integration. This Agreement, the Financing Documents, and
any documents or instruments to be delivered in accordance with this Agreement
contain the entire agreement of the parties hereto with respect to the matters
covered and the transactions contemplated hereby, and no other agreement,
statement, representation, warranty or promise made prior hereto or
contemporaneously herewith by any party hereto, or any employee, officer, agent,
or attorney of any party hereto, shall be valid or binding or relied upon by any
party as an inducement to enter into, or as consideration for, this Agreement.
(h) Construction of Agreement. Each party acknowledges (i) that it has
participated in the negotiation of this Agreement and the other documents
executed and delivered in connection herewith, and no provision of this
Agreement or the other documents executed and delivered in connection herewith
shall be construed against or interpreted to the disadvantage of any party
hereto or thereto by any court or other governmental or judicial authority by
reason of such party having or being deemed to have structured, dictated or
drafted such provision; (ii) that the Borrower, at all times have had access to
an attorney in the negotiation of the terms of and in the preparation and
execution of this Agreement and the other documents executed and delivered in
connection herewith, and the Borrower, has had the opportunity to review,
analyze, and discuss with its counsel this Agreement and the other documents
executed and delivered in connection herewith, and the underlying factual
matters relevant to this Agreement, for a sufficient period of time prior to the
execution and delivery hereof and thereof; (iii) that all of the terms of this
Agreement and the other documents executed and delivered in connection herewith
were negotiated at arm's-length; (iv) that this Agreement and the other
documents executed and delivered in connection herewith were prepared and
executed without fraud, duress, undue influence, or coercion of any kind exerted
by any of the parties upon the others; and (v) that the execution and delivery
of this Agreement is the free and voluntary act of the Borrower.
(i) Notices. Any notices required or permitted by this Agreement shall
be in writing and shall be deemed delivered if hand delivered or delivered by
certified mail, postage prepaid, return receipt requested, first class mail
postage prepaid, or by telecopy (immediately followed by hard copy by first
class mail) as follows, unless such address is changed by written notice as
provided hereunder:
If to the Borrower:
CAN CAL RESOURCES LIMITED
0000 Xxxxxxxxxx Xxxxxx
Xxxx 000, Xxxxxxxx #0
Xxx Xxxxx, XX 00000
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If to the Lender:
XXXX SEQUOIA, CORP.
c/o Attn: Xxxxx X. Xxxxxx, Esq.
Xxxxx & Xxxxxx LLP
0 Xxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(j) Gender. The singular includes the plural and vice versa. Each gender
includes all other genders.
(k) Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one in the same agreement.
(1) Binding Effect. This Agreement shall have no effect at law or in
equity unless and until this Agreement has been executed by Lender. Lender in
its sole discretion may require that all of the exhibits to this Agreement are
fully executed and delivered simultaneously with Lender execution of this
Agreement.
(m) Third Party Obligations. No person not a party to this Agreement
will be a third-party beneficiary or acquire any rights hereunder.
(n) Costs. Any costs incurred by Lender resulting from the transactions
contemplated by this Agreement such as legal expense, the filing of any
financing statement, or property inspection, shall be solely at Borrower's
expense and without right of setoff.
(o) Venue. Venue for any action brought regarding the interpretation of
this Agreement shall lie exclusively in Orange County, California.
IN WITNESS WHEREOF, the parties hereto have executed or caused to be
executed, this Agreement under seal as of the date first written above.
Borrower:
CAN CAL RESOURCES LIMITED
By: /s/ X. X. Xxxxx
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Lender:
XXXX SEQUOIA CORP.
By: /s/ Xxxx Xxxxxxx
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