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EXHIBIT 6.14
LOAN AGREEMENT
This Agreement, is made this 27th day of August, 1999, by and among
Norwest Bank Colorado, National Association, Trustee of the Xxxxx X. Xxxxxx
Rollover XXX, Xxxx X. Xxxxxxxxxxx and Xxxxx X. Xxxxxx & Xxxx X. Xxxxxx
(collectively "Lender"); OPEC Corp., a Colorado corporation, ("Borrower"); and
Xxxxxx X. Xxxxxxxx ("Guarantor").
WHEREAS, Borrower has applied to Lender for a loan in the amount of ONE
MILLION and no/100ths DOLLARS (U.S. $1,000,000.00) in order to meet its cash
flow business obligations, and
WHEREAS, Guarantor has a substantial economic interest in the success of
Borrower and its parent company, FutureOne, Inc., a Nevada corporation
("FutureOne", and together with the Borrower, the "Company") and desires that
the Borrower and the Lender enter into the Loan, and
WHEREAS, Lender desires to make the aforesaid loan subject to the
following terms and conditions,
NOW, THEREFORE, for and in consideration of the following mutual
agreements and other good and valuable considerations, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Loan. Lender agrees to lend Borrower ONE MILLION and no/100ths
DOLLARS (U.S. $1,000,000.00) on the following terms:
INTEREST RATE: 15% per annum.
TERM: Due September 1, 2001.
PAYMENTS: All accrued but unpaid interest on the 1st day of October,
1999, and on the first day of each month thereafter. The
entire outstanding principal balance, together with all
accrued and unpaid interest and all other sums due hereunder,
shall be due in full on September 1, 2001, IN A BALLOON
PAYMENT. Borrower understands this Note is payable in full on
September 1, 2001, and that this Note is a balloon payment
loan. The Lender is under no obligation to refinance the loan
at that time. Borrower will therefore be required to make
payment out of other assets it may own, or it will have to
find a Lender willing to lend it money at prevailing market
rates, which may be considerably higher than the interest rate
of this loan. If Borrower refinances this loan at maturity, it
may have to pay some or all closing costs normally associated
with a new loan, even if it obtains refinancing from the same
Lender. If Borrower
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fails to repay the principal and interest as required under
this paragraph, then the Lender may invoke any of the remedies
permitted by the Note and UCC Security Agreement.
CONVERSION PRIVILEGE: Lender shall have the right to convert (the "Conversion
Privilege") the principal amount of the Note into shares of common stock of
FutureOne, par value $.001 per share ("Common Stock", and together with the
Note, the "Securities") at the conversion ratio of $2.25 of principal for one
share of Common Stock.
PREPAYMENT RESTRICTIONS: This note may be prepaid at any time in whole or in
part upon one hundred twenty (120) days written notice to Lender, subject to
Lender's Conversion Privilege. In the event all or a portion of the shares of
Common Stock issuable upon conversion are not unrestricted and freely
transferable or transferable in accordance with Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), Borrower shall have
no right to prepay the Note. The parties acknowledge the one year holding period
for the Common Stock pursuant to Rule 144(d) promulgated under the Securities
Act shall elapse on or before August 27, 2000 with respect to the Lender.
ADDITIONAL TERMS: Additional terms are set forth in the Note and Security
Agreement, copies of which are attached hereto as Exhibit A and Exhibit B
respectively incorporated herein.
2. Loan Origination Fee. Borrower agrees to pay a two per cent (2%)
loan origination fee to Lender in the amount of TWENTY THOUSAND DOLLARS
($20,000.00), due at Closing.
3. Loan Disbursement. The parties agree that the loan shall be
disbursed at Closing.
4. UCC Search. Lender shall conduct a UCC search on Borrower which
search shall contain no matters unacceptable to Lender.
5. Closing Costs. Borrower shall pay all costs and expenses
incidental to this loan transaction, including but not limited to, UCC search
fees, filing fees, wire transfer fees, closing fees, and Lender's attorney's
fees which attorney's fees shall not exceed $5,000.00.
6. Guaranty. The promissory note shall be personally guaranteed by
Guarantor.
7. Security. Upon Closing, the Borrower shall execute and deliver to
Lender a UCC security agreement and financing statement securing the promissory
note to be executed in conjunction herewith and securing Borrower's accounts.
The Note, UCC Security Agreement and Guaranty shall be in a form satisfactory to
Lender.
8. Representations and Warranties. The Borrower and FutureOne, Inc.
represent and warrant as follows:
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a. Organization, Standing, of Borrower. The Borrower is, and
at Closing will be a Corporation, duly organized validly existing and in
good standing under the laws of the State of Colorado, with all requisite
corporate power and authority to own and operate its properties and to
carry on its business as now conducted; the Borrower has, and at Closing
will have all requisite corporate power and authority to enter into this
Loan Agreement and to carry out the terms hereof.
b. Organization, Standing, of FutureOne, Inc. FutureOne, Inc.
("FUTO") is, and at Closing will be a corporation duly organized and
validly existing and in good standing under the laws of the State of
Nevada, with all requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted; FUTO
has and at Closing will have all requisite corporate power and authority
to enter into this Agreement and to issue the stock certificates required
by the conversion provisions of this Agreement, and to carry out the terms
hereof and thereof. Borrower is a wholly owned subsidiary of FUTO.
c. Financial Statements. Borrower has furnished Lender with
the following financial statements: (a) audited statement of income for
the one year ten month period ended July 28, 1998; and audited balance
sheets as of July 28, 1998; (b) unaudited income statements for the nine
month period ended June 30, 1999 and unaudited balance sheets as of August
26, 1999. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis and
fairly present the financial position of the Borrower as of the dates
thereof and the results of operations included therein for such periods.
d. No material adverse change in financial condition or
affairs. From July 28, 1998 to Closing, there has been no material adverse
change in the assets, liabilities, financial condition or affairs of
Borrower from that set forth or reflected in the financial statements as
of July 28, 1998 referred to hereinabove.
e. No default on other debt. Neither Borrower nor FUTO is in
default in respect to the payment of any indebtedness or the observance of
any covenant or condition, which would enable the creditor to accelerate
the maturity of its indebtedness, set forth in any instrument or agreement
relating thereto.
f. No stockholder or governmental consent required. No
consent, approval, or authorization by the holder of any shares of
Borrower or FUTO or by any governmental authority is presently required in
connection with the execution and delivery of this Agreement or the
conversion of the Note into Common Stock of FUTO or the consummation of
any other transaction contemplated hereby.
g. Disclosure. Neither any statement furnished to you in
writing by or on behalf of Borrower or FUTO in connection with the
transactions contemplated hereby
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contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein
not misleading.
h. Authorization, Execution and Delivery of Note and Security
Agreement. The Note and Security Agreement have been duly and validly
authorized, and when executed and delivered in accordance with the
provisions of this Agreement will be the Borrower's valid obligations,
legally binding upon it in accordance with their terms, and entitled to
the benefits of this Agreement in accordance with the terms thereof,
except as enforcement thereof may be limited by bankruptcy, insolvency, or
other laws affecting the enforcement of creditors' rights.
9. Lender's Representations and Warranties. See Rider A, paragraph 9
attached hereto and incorporated herein.
10. Fiduciary. See Rider A, paragraph 10 attached hereto and
incorporated herein.
11. Conditions. Lender's obligation to make the loan to Borrower at
Closing is subject to the fulfillment to its satisfaction, before or at Closing
of the following conditions:
a. Representations and Warranties Correct. Borrower's
representations and warranties contained herein or otherwise made in
writing by or on behalf of the Borrower and FUTO in connection with the
transactions contemplated hereby shall have been correct when made and
shall be correct at and as of Closing, except as affected by the
transactions contemplated hereby.
b. Reservation of Common Stock. FUTO shall have duly
authorized and reserved for issuance the shares of Common Stock issuable
upon the conversion of the Note.
c. Performance. Borrower and FUTO shall have performed and
complied with all agreements and conditions contained herein required to
be performed or complied with by it prior to or at Closing.
d. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions
shall be satisfactory in form and substance to Lender and Lender shall
have received all of such documents requested by it.
12. Inspection. The holder of the Note will be permitted by Borrower
and FUTO to visit and inspect, at Borrower's expense, any of Borrower's or
FUTO's properties, including its books (and to make extracts or copies
therefrom), and to discuss its affairs, finances, and accounts with its
officers, all at such reasonable times and as often as is reasonably requested,
provided, however, that all material furnished pursuant hereto to the extent not
otherwise made public by Borrower or FUTO is furnished to Lender solely for the
purposes hereof and with the understanding
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that Lender will not disclose such information to any third party, except for
regulatory authorities and other proper disclosures.
13. Closing. Closing of the shall take place at the offices of the
Lender's attorneys, ALPERN, MYERS, STUART, XXXXXXXXXX & XXXXXXXX, A Legal
Services LLC, 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000, at 11:00 a.m.
on Friday, August 27, 1999.
14. Authorization. The board of directors of Borrower shall
authorize this loan to be made and the board of directors of FutureOne, Inc.
shall authorize the conversion privileges.
15. Facsimiles. Facsimile signatures may be considered as originals
for the purpose of Closing, but shall be replaced by original signatures
forthwith after Closing.
16. This Agreement shall be binding upon and inure to the benefit of
heirs, successors, trustees, and assigns of the parties. It shall be governed by
and construed in accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first written above.
LENDER:
Norwest Bank Colorado, National
Association, Trustee of the Xxxxx X. Xxxxxx
Rollover XXX
By:
---------------------------------
Xxxxx X. Xxxxxxx, Vice President
------------------------------------
Xxxx X. Xxxxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
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BORROWER:
OPEC Corp., a Colorado corporation
By:_________________________________
Xxxxxx X. Xxxxxxxx, President
ATTEST:
_________________________________
Xxxxxx X. Xxxxxx, Secretary
GUARANTOR:
___________________________________
Xxxxxx X. Xxxxxxxx
STATE OF COLORADO )
) ss.
County of El Paso )
Subscribed and sworn to before me this _________ day of August, 1999, by
Xxxxx X. Xxxxxxx, as Trustee for Norwest Bank Colorado, National Association,
Trustee of the Xxxxx X. Xxxxxx Rollover XXX.
WITNESS my hand and official seal.
My commission expires:____________
(SEAL)
___________________________________
Notary Public
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STATE OF COLORADO )
) ss.
County of El Paso )
Subscribed and sworn to before me this _____________ day of August, 1999,
by Xxxx X. Xxxxxxxxxxx.
WITNESS my hand and official seal.
My commission expires:________________
(SEAL)
___________________________________
Notary Public
STATE OF COLORADO )
) ss.
County of El Paso )
Subscribed and sworn to before me this ___________ day of August, 1999, by
Xxxxx X. Xxxxxx and Xxxx X. Xxxxxx.
WITNESS my hand and official seal.
My commission expires:_______________
(SEAL)
___________________________________
Notary Public
STATE OF COLORADO )
) ss.
County of El Paso )
Subscribed and sworn to before me this ____________ day of August, 1999,
by Xxxxxx X. Xxxxxxxx, as President and Xxxxxx X. Xxxxxx, as Secretary of OPEC
Corp., a Colorado corporation.
WITNESS my hand and official seal.
My commission expires:_______________
(SEAL)
___________________________________
Notary Public
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STATE OF COLORADO )
) ss.
County of El Paso )
Subscribed and sworn to before me this ____________ day of August, 1999,
by Xxxxxx X. Xxxxxxxx, as Guarantor.
WITNESS my hand and official seal.
My commission expires:______________
(SEAL)
___________________________________
Notary Public
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ACKNOWLEDGMENT OF CONVERSION PRIVILEGE & WARRANTIES
In consideration of Lender making this Loan to Borrower, the undersigned
executes this Loan Agreement not as a Maker or Guarantor, but merely to
acknowledge its obligations concerning the Conversion Privilege and its
warranties.
FutureOne, Inc., a Nevada Corporation
By:________________________________
Xxxx Xxxx, Vice President
ATTEST:
____________________________________
________________________, Secretary
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