Exhibit 10.5
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") is dated as
of December 31, 1999, between ValorInvest Ltd., an Irish Corporation ("Lender"),
and Marine Shuttle Operations Inc. (formerly Geoteck International, Inc.), a
Nevada corporation ("Borrower").
RECITALS
WHEREAS, Borrower and Lender entered into a loan agreement dated March
1, 1999, whereby Borrower was entitled to borrow US$6,000,000 from Lender (the
"Consolidated Agreement"); and
WHEREAS, Borrower and Lender have determined to amend and restate the
Consolidated Agreement to increase the amount of time available to Borrower to
repay loans outstanding under the Consolidated Agreement and to reflect certain
other terms agreed to by the parties.
NOW THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Loan. Lender will provide the Borrower with a loan in the amount of
up to US$6,000,000 (the "Loan"). Borrower and Lender agree that $3,875,000 has
heretofore been advanced under the Loan and that Schedule 1 attached hereto is a
complete and accurate statement of advances and repayment of principal of the
Loan. The Loan shall be evidenced by Borrower's amended and restated commercial
promissory note attached hereto as Exhibit A (the "Note"). Upon the satisfaction
of the conditions precedent to any advance as set forth herein, Lender will make
available the proceeds of the Loan. Advances will be made available in $250,000
increments upon ten (10) business days written notice of demand by Borrower;
provided, however, that Lender is not required to advance more than $500,000 in
any single month. Advances shall be limited in the aggregate to the stated
principal amount of the Loan; the Loan is not a revolving line of credit. The
following are conditions precedent to any advance hereunder (except to the
extent and in the manner expressly waived by Lender, and any such conditions
waived by Lender may be reimposed as a condition of subsequent advances):
(a) Borrower shall have executed and delivered the Note to the Lender.
(b) All representations and warranties made by Borrower in this
Agreement and the Note shall be true, complete and correct on and as of the date
of the making of any advance hereunder as though such representations and
warranties were made anew on such date.
(c) There shall not have occurred and be continuing any default in the
performance or observance of any of the material covenants, agreements, or
conditions to be performed or observed by Borrower under this Agreement, the
Note or in connection with any other material
obligations of Borrower to Lender, nor shall there have occurred and be
continuing any event, condition, or circumstances which, with notice or the
passage of time, or both, would constitute a breach in any material respect of
any representation, covenant, or warranty by Borrower or a default under this
Agreement, the Note or in connection with any other obligations of Borrower to
Lender.
2. Interest. The Loan shall bear interest at a rate of seven and one
half percent (7.5%) per annum.
3. Repayment of Loan. The outstanding principal balance of the Loan and
accrued and unpaid interest thereon shall be due and payable as follows: (a) to
the extent the Borrower receives cash proceeds from any equity or debt
financings after January 1, 2000 which, in the aggregate, exceed $2,000,000,
then that portion of the principal balance of the Loan plus accrued and unpaid
interest on the Loan equal to (x) twenty-five percent (25%) of the total of such
excess cash proceeds received after January 1, 2000 less (y) any payments
previously made by Borrower to Lender under this clause (a) (or such lesser
amount of principal and interest as may then be outstanding under the Loan)
shall be due and payable within five (5) business days after each date on which
Borrower receives such excess cash proceeds; provided, however, that cash
proceeds from debt financings with a due date of less than one year from the
time that Borrower receives such proceeds shall not be aggregated in determining
whether Borrower has received cash proceeds in excess of $2,000,000 and (b) if
not sooner paid (whether by acceleration or otherwise), in full on December 31,
2000.
4. Representations, Warranties, and Covenants of Borrower. Borrower
represents, warrants and covenants to Lender as follows:
(a) Corporate Organization and Good Standing. Borrower is a corporation
duly organized, validly existing and in good standing under the laws of
its jurisdiction, with all requisite corporate power and authority to
own, operate and lease its properties and to carry on its business as
it is now being conducted. Borrower is qualified and in good standing
to do business in all jurisdictions where its business or ownership or
leasing of property or assets requires such qualification.
(b) Authority. Borrower has all requisite corporate power and authority
to execute and deliver this Note and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution and delivery of this Note by Borrower and the consummation by
Borrower of the transactions contemplated hereby have been duly
authorized by its board of directors or similar governing body, if
applicable, and no other corporate or shareholder proceedings on the
part of Borrower are necessary to authorize this Note or to consummate
the transactions contemplated hereby. This Note has been duly executed
and delivered by Borrower and is a valid and binding obligation of
Borrower.
(c) Contracts. All material contracts, agreements, licenses, leases for
real property or personal property, permits, arrangements, commitments,
instruments, understanding or contracts, whether written or oral,
express or implied, contingent, fixed or otherwise, to which Borrower
is a party, the breach or termination of which would have a
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material adverse effect on Borrower or its business (collectively, the
"Borrower Contracts") are in full force and effect, and there exists no
material breach or violation of or default by Borrower under any
Borrower Contract nor, to Borrower's knowledge, by any other party to a
Borrower Contract, or any event that with notice or the lapse of time,
or both, will create a material breach or violation thereof or default
under any Borrower Contract by Borrower nor, to Borrower's knowledge,
by any other party to a Borrower Contract. The continuation, validity,
and effectiveness of each Borrower Contract will in no way be affected
by the consummation of the transactions contemplated by this Note.
(d) Actions and Proceedings. There is no claim, charge, arbitration,
grievance, action, suit, investigation, bankruptcy, insolvency,
rearrangement or similar actions or proceedings, whether voluntary or
involuntary, by or before any court, arbiter, administrative agency or
other governmental authority now pending or threatened against
Borrower, or which involves any of the business, properties or assets
of Borrower that, if adversely resolved or determined, would have a
material adverse effect on Borrower. Borrower has no intention of
filing or commencing any such actions or proceedings.
(e) Advances. At the date of this Agreement, a principal balance of
$2,550,000, plus accrued and unpaid interest on all advances under the
Consolidated Note, is due and owing from Borrower to Lender under the
Consolidated Note and the Note without any offset, reduction,
counterclaim or recoupment whatsoever.
5. Notice. All notices, requests, demands and other communications
required or permitted hereunder must be in writing and shall be effective (a)
five days after being mailed by first class and certified or registered mail,
return receipt requested, with proper postage prepaid, or (b) two (2) business
days after being delivered to an established over-night delivery service, with
costs for "next day" delivery prepaid, addressed in either case to the following
addresses (or in either case to such other address as such party may from time
to time designate to the other by like written notice):
To the Borrower: Marine Shuttle Operations Inc.
Attention: Xx. Xxxxx Xxxx
c/o Marine Shuttle Operations AS
Xxxxxxxxxxxx 00
X-0000 Xxxxxx, Xxxxxx
Tel:
Fax:
with copy to:
Xxxxxxx X. Xxxxxxx, Esquire
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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To the Lender: ValorInvest Ltd.
Attention: Xx. Xxxxxx Xxxxxxxx
00 Xxxx xxx Xxxxxxx
0000 Xxxxxx
Xxxxxxxxxxx
Fax: 0000-0-0000000
with copy to:
Xxxxxxx X. Xxxxxx, Esquire
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX., Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
6. Miscellaneous.
(a) Assignment. Borrower may not assign any rights or delegate any
duties it has assumed hereunder without the prior written consent of Lender.
Lender may assign its rights hereunder or delegate its duties hereunder to
clients of Lender who are not actual, direct competitors of Borrower, without
the consent of Borrower, subject only to compliance with any applicable laws.
(b) Governing Law and Choice of Forum. This Agreement will be
governed by and construed in accordance with the laws of the State of Nevada.
The parties agree that any appropriate court located in Nevada will have
exclusive jurisdiction of any case or controversy arising under or in connection
with this Agreement and will be a proper forum in which to adjudicate such case
or controversy. The parties expressly consent to personal jurisdiction and venue
in such courts.
(c) Entire Agreement/Amendment. This Agreement embodies the entire
agreement of the parties hereto relating to the subject matter hereof and
supercedes all oral agreements, and to the extent inconsistent with the terms
hereof, all other written agreements, including that certain loan agreement
between Lender and Borrower, dated as of March 1, 1999.
(d) Severability. In the event any provision (or any part of any
provision) contained in this Agreement shall for any reason be finally held by a
court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision (or remaining part of the affected provision) of this Agreement;
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision (or part thereof) had never been contained herein, but
only to the extent it is invalid, illegal or unenforceable.
(e) Captions and Section Headings. Captions and section headings
used herein are for convenience only and are not a part of this Agreement and
will not be used in construing it.
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(f) Fax Execution. This Agreement may be executed by delivery of
executed signature pages by fax and such fax execution will be effective for all
purposes.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first set forth above.
VALORINVEST LTD.
BY:___________________________________
Xxxxxx Xxxxxxxx
Director and Secretary
MARINE SHUTTLE OPERATIONS, INC.
By:___________________________________
Xxxxx Xxxx
President
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SCHEDULE 1 TO
AMENDED AND RESTATED LOAN AGREEMENT
STATEMENT OF ADVANCES AND REPAYMENT OF PRINICIPAL
UNDER THE LOAN
Bridge Loan from Valorinvest
Date amount balance
-----------------------------------------------------------
3/19/99 750,000.00 750,000.00
3/25/99 250,000.00 1,000,000.00
3/30/99 1,000,000.00
4/14/99 500,000.00 1,500,000.00
4/30/99 1,500,000.00
5/14/99 250,000.00 1,750,000.00
5/19/99 250,000.00 2,000,000.00
5/30/99 2,000,000.00
6/4/99 250,000.00 2,250,000.00
6/8/99 250,000.00 2,500,000.00
6/30/99 2,500,000.00
7/1/99 250,000.00 2,750,000.00
7/7/99 250,000.00 3,000,000.00
7/27/99 250,000.00 3,250,000.00
7/30/99 3,250,000.00
8/16/99 250,000.00 3,500,000.00
8/30/99 3,500,000.00
9/10/99 3,500,000.00
9/24/99 150,000.00 3,650,000.00
9/30/99 3,650,000.00
10/5/99 150,000.00 3,800,000.00
10/28/99 75,000.00 3,875,000.00
10/30/99 3,875,000.00
11/30/99 3,875,000.00
12/15/99 -1,325,000.00 2,550,000.00
12/30/99 2,550,000.00
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EXHIBIT A
NOTE
AMENDED AND RESTATED COMMERCIAL PROMISSORY NOTE
THIS AMENDED AND RESTATED COMMERCIAL PROMISSORY NOTE (this "Note") is made as of
the date provided below by MARINE SHUTTLE OPERATIONS INC. (formerly Geoteck
International, Inc.), a Nevada corporation ("Borrower"), for the benefit of
VALORINVEST LTD. ("Lender").
RECITALS
WHEREAS, Lender made available $6,000,000 as a bridge loan to Borrower
against its promissory note dated March 1, 1999 (the "Consolidated Note"); and
WHEREAS, the principal, interest and all other sums payable under the
Consolidated Note were due and payable on December 31, 1999 (the "Consolidated
Maturity Date"); and
WHEREAS, Borrower has advised Lender that Borrower wants to extend the
Consolidated Maturity Date; and
WHEREAS, in order to induce Lender to extend the Consolidated Maturity
Date, Borrower has agreed to amend and restate the Consolidated Note.
NOW THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower agrees as follows:
U.S. $6,000,000.00 December 31, 1999
FOR VALUE RECEIVED, Borrower does hereby promise to pay to the order of
Lender the principal sum of SIX MILLION DOLLARS ($6,000,000), together with
interest thereon as provided below.
1. Acknowledgement of Receipt of Funds. As of the date of this Note,
Borrower has received aggregate advances of $3,875,000 in principal funds (not
including interest or any other sums payable hereunder) from Lender pursuant to
the terms of this Note and originally evidenced by the Consolidated Note, of
which $1,325,000 has been repaid. This Note is a modification and complete
restatement, but not a novation, of the Consolidated Note.
2. Interest. Interest will accrue on the outstanding principal amount
of this Note at the rate of seven and one half percent (7.5%) per annum from the
date of each advance, and until all amounts outstanding under this Note have
been paid in full.
3. Late Charges; Default Interest. In the event any principal amount
and/or interest due under this Note is not actually received by Lender within
ten (10) days after the date when the same is due, Lender shall be entitled to
collect a late charge to cover the
increased costs of administering the loan in an amount equal to five percent
(5%) of such overdue amount. Overdue payments of interest and/or principal
hereunder, and all sums advanced or expended by Lender for Borrower's account
and not repaid, shall bear interest during the period of any default hereunder
at the rate of eighteen percent (18%) simple interest per annum, or if such per
annum rate shall not be permitted by law, then the highest interest rate
permitted by law.
4. Payments. Interest, principal and all other sums payable hereunder
(collectively, the "Obligations") shall be payable, without any offset,
reduction, counterclaim or recoupment whatsoever, in lawful money of the United
States of America which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, and shall be due and payable as
follows unless extended by the Lender:
(a) To the extent the Borrower receives cash proceeds from any equity
or debt financings after January 1, 2000 which, in the aggregate,
exceed $2,000,000, then that portion of the principal balance of the
Obligations plus accrued and unpaid interest on the Obligations equal
to (x) twenty-five percent (25%) of the total of such excess cash
proceeds received after January 1, 2000 less (y) any payments
previously made by Borrower to Lender under this clause (a) (or such
lesser amount of the Obligations and accrued and unpaid interest as may
then be outstanding) shall be due and payable within five (5) business
days after each date on which Borrower receives such excess cash
proceeds; provided, however, that cash proceeds from debt financings
with a due date of less than one year from the time that Borrower
receives such proceeds shall not be aggregated in determining whether
Borrower has received cash proceeds in excess of $2,000,000 and
(b) If not sooner paid (whether by acceleration or otherwise), in full
on December 31, 2000.
5. Advances. Advances by Lender under this Note shall be made only as
provided in and are subject to the terms and conditions in that Amended and
Restated Loan Agreement between Borrower and Lender of even date herewith (the
"Loan Agreement"). Advances are limited in the aggregate to the stated principal
amount of this Note; this is not a revolving line of credit.
6. Application of Payments. All payments shall be applied first on
account of late charges, if any, then to Lender's costs of collection
(including, without limitation, reasonable attorneys' fees and expenses), if
any, then, to accrued and unpaid interest, and the balance to the reduction of
principal. For the purposes of computing interest on the debt evidenced hereby,
interest shall be calculated on the basis of a year consisting of three hundred
sixty (360) days, and shall be charged on the basis of the actual number of
calendar days that the principal amount advanced remains unpaid to the Lender.
7. Default; Remedies. Upon the happening of any of the following
events, the Obligations, in their entirety, shall at once become due and payable
at the option of
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Lender without further notice and Lender may exercise any or all additional
remedies provided under this Note:
(a) if Borrower shall fail to make payment when due of any obligation
hereunder, subject to any applicable notice or grace period; or
(b) if any warranty or representation made by Borrower in this Note or
the Loan Agreement shall be false or misleading in any material adverse
respect; or any financial statement, information or certification
submitted to Lender shall be false or misleading in any material
adverse respect; or Borrower shall fail to comply with any material
term, condition or covenant contained in this Note or the Loan
Agreement, if, in each instance, the circumstances giving rise to any
false or misleading condition or such failure to comply shall continue
for a period of fourteen (14) days after Lender shall have given
Borrower written notice thereof; or
(c) if Borrower shall make a general assignment for the benefit of
creditors or call a meeting of creditors for the purpose of obtaining
any financial accommodation or concession; or if a receiver or trustee
shall be appointed for all or any portion of Borrower's assets; or if
there shall be filed by Borrower any petition or application for relief
under the Bankruptcy Code; or
(d) if there shall be filed against Borrower any petition or
application for relief under the Bankruptcy Code which is not
discharged or bonded off to the satisfaction of Lender within sixty
(60) days, or if Borrower consents to any order for relief.
Failure of the Lender to exercise the option to accelerate payment or exercise
other remedies in the event of any default shall not constitute a waiver of the
right to exercise the same in the event of any subsequent default.
8. Prepayment. The privilege is reserved to Borrower to prepay the
indebtedness evidenced hereby, in whole or in part, at any time or from time to
time, without prepayment premium or penalty, provided, however, that Borrower
shall provide prior written notice to Lender of the intent to prepay ten (10)
days in advance of such prepayment.
9. Attorney's Fees. In the event counsel is employed by the Lender to
enforce the provisions of this Note, Borrower shall pay upon demand reasonable
attorneys' fees so incurred by Lender, and all other costs and expenses
connected with such enforcement.
10. Waivers. The Borrower hereby waives presentment, protest and
demand, notice of protest and notice of dishonor of this Note.
11. Notices. All notices, requests, demands and other communications
required or permitted hereunder must be in writing and shall be effective (a)
five (5) days after
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being mailed by first class and certified or registered mail, return receipt
requested, with proper postage prepaid, or (b) two (2) business days after being
delivered to an established over-night delivery service, with costs for "next
day" delivery prepaid, addressed in either case to the following addresses (or
at such other addresses as will be given in writing by the parties to one
another):
To the Borrower: Marine Shuttle Operations, Inc.
Attention: Xx. Xxxxx Xxxx
c/o Marine Shuttle Operations AS
Xxxxxxxxxxxx 00
X-0000 Xxxxxx, Xxxxxx
with copy to:
Xxxxxxx X. Xxxxxxx, Esquire
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
To the Lender: ValorInvest Ltd.
Attention: Xx. Xxxxxx Xxxxxxxx
00 Xxxx xxx Xxxxxxx
0000 Xxxxxx
Xxxxxxxxxxx
Fax: 0000-0-0000000
with copy to:
Xxxxxxx X. Xxxxxx, Esquire
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX., Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
12. Severability. In the event any provision (or any part of any
provision) contained in this Note shall for any reason be finally held by a
court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision (or remaining part of the affected provision) of this Note; but
this Note shall be construed as if such invalid, illegal or unenforceable
provision (or part thereof) had never been contained herein, but only to the
extent it is invalid, illegal or unenforceable.
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13. Successors and Assigns. This Note and/or rights hereunder are
assignable to clients of Lender who are not actual, direct competitors of
Borrower, without the consent of Borrower, subject only to compliance with
applicable securities laws.
14. Commercial Purpose. The Borrower warrants that the loan evidenced
by this Note is being made solely to acquire or carry on a business or
commercial enterprise, and that the Borrower is a business or commercial
organization. The Borrower further covenants that the loan evidenced by this
Note shall be construed for all purposes as a commercial purpose loan.
15. Time is of the Essence. Time is of the essence as to each and every
provision of this Note.
16. Governing Law and Choice of Forum. The validity and construction of
this Note and all matters pertaining thereto are to be determined and construed
according to the laws of the State of Nevada, excluding its conflicts of law
principles. The Borrower agrees that any appropriate court located in Nevada
will have exclusive jurisdiction over any case or controversy arising under or
in connection with this Note and will be a proper forum in which to adjudicate
such case or controversy. The Borrower expressly consents to personal
jurisdiction and venue in such courts.
17. Waiver of Jury Trial. BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO WHICH BORROWER AND LENDER MAY BE PARTIES ARISING OUT OF,
IN CONNECTION WITH OR IN ANY WAY PERTAINING TO THIS NOTE. IT IS AGREED AND
UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS
AGAINST ALL PARTIES TO SUCH ACTION OR PROCEEDINGS, INCLUDING CLAIMS AGAINST
PARTIES WHO ARE NOT PARTIES TO THIS NOTE. THIS WAIVER IS KNOWINGLY, WILLINGLY
AND VOLUNTARILY MADE BY BORROWER, AND BORROWER HEREBY REPRESENTS THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THIS WAIVER OF TRIAL BY JURY AND THAT BORROWER HAS BEEN REPRESENTED IN THE
SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT
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LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT BORROWER HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
WITNESS the execution hereof by the Borrower on the date first
hereinabove written, with the intent that this shall be an instrument under
seal.
BORROWER:
WITNESS: MARINE SHUTTLE OPERATIONS, INC.
________________________ By:___________________________(SEAL)
Name Xxxxx Xxxx
President
Bank Wiring Instructions
____________________________________________
____________________________________________
____________________________________________
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