LOAN AGREEMENT
This Loan Agreement
(the “Loan Agreement”) is made as of February 10,
2012, by and between DCO Energy, LLC, a New Jersey limited
liability company with offices at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx
000, Xxxx Xxxxxxx, Xxx Xxxxxx 00000 (the “Lender”) and
Ocean Thermal Energy Corporation, a Delaware Corporation with
offices at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000
(the “Borrower”).
WHEREAS, the
Borrower desires to obtain certain credit facilities, as set forth
in this Loan Agreement, and the Lender is willing to provide such
credit facilities on the terms and conditions set forth
herein;
NOW, THEREFORE, the
Lender and the Borrower, intending to be legally bound, hereby
agree as follows:
1.
The Loan. The Lender agrees,
pursuant to the terms and conditions of this Loan Agreement and the
other Loan Documents (as defined below), to make a loan to the
Borrower in the original principal amount of One Million Dollars
($1,000,000) (the “Loan”). The Loan shall be evidenced
by a Note (the “Note”) and shall be made in accordance
with and subject to the terms and conditions of this Loan
Agreement, the Note, and other Loan Documents.
2.
The Loan
Documents. The following documents and materials (together
with this Loan Agreement and any other accessory documents executed
in connection herewith, such documents and materials, as they may
be amended, restated, renewed and extended, are collectively
referred to herein as the “Loan Documents”) have been
or will be executed in connection with the Loan:
(a) Note;
(b) Security
Agreement, of even date herewith, between Lender and Borrower (the
“Security Agreement”);
(c) A
warrant, of even date herewith, granting to Lender, as additional
consideration for making the Loan to Borrower, the right to
purchase 3,295,761 shares of the Borrower’s common stock at a
price of $0.50 per share.
1
7.
Expenses and Fees. The Borrower
and Lender each agree to pay their own expenses and fees of every
nature related to their execution and carrying out of this Loan
Agreement and the other Loan Documents.
(c)
Financial Information. Subject
to any limitation stated therein or in connection therewith, all
balance sheets, earning statements, accounts receivable lists and
aging schedules and other financial data which have been or shall
be furnished to the Lender by the Borrower to induce the Lender to
enter into this Loan Agreement or otherwise in connection herewith,
do or will fairly represent the financial condition of the Borrower
in all material respects, are accurate, complete and correct in all
material respects insofar as completeness may be necessary to give
the Lender a true and accurate knowledge of the subject matter as
of the date hereof. There are no material liabilities, direct or
indirect, fixed or contingent, of the Borrower as of the date of
such financial statements, which are not reflected therein or in
the notes thereto. There has been no material adverse change in the
financial condition or operations of the Borrower since the date of
said financial statements or since the respective dates on which
the Borrower furnished the Lender with other financial data or
other representations about its financial condition.
(d) Solvency.
Any borrowings to be made by the Borrower under this Loan Agreement
do not and will not render Borrower insolvent. The Borrower is not
contemplating either the filing of a petition under any state or
federal bankruptcy or insolvency laws, or the liquidation of all or
a major portion of its property, and the Borrower has no knowledge
or any reason to know of any person contemplating the filing of any
such petition against it.
(i)
Shall be issued in such amounts
and by such companies as are satisfactory to the Lender;
and
2
(ii) Shall
contain provisions providing for thirty (30) days’ prior
written notice to the Lender of any intended change or cancellation
and providing that no such change or cancellation shall be
effective as to the Lender in the absence of such
notice.
(a) The
Borrower’s representations and warranties as contained herein
shall be accurate and complete as of the date of
closing;
(b) The
Borrower shall not be in default under any of the covenants
contained herein as of the date of closing;
(c) The
Borrower shall have executed and delivered all of the Loan
Documents to which it is a party.
3
(a)
If any statement, representation or
warranty made by the Borrower in the Loan Documents, in connection
therewith or any financial statement, report, schedule, or
certificate furnished to the Lender by the Borrower, any of its
representatives, employees or accountants during the term of this
Agreement shall prove to have been false or misleading when made,
or subsequently becomes false or misleading, in any material
respect;
(b) Default
by the Borrower in payment within five (5) days of the due date of
any principal or interest or other amounts called for under the
Loan Documents;
(c) Default
by the Borrower in the performance or observance of any of its
respective obligations under the provisions, terms, conditions,
warranties or covenants of the Loan Documents and such failure
shall continue for a period of thirty (30) days or more following
receipt of written notice thereof from the Lender;
(d) The
occurrence of an event of default not cured within any applicable
remedy period, under any other obligation of the Borrower in an
aggregate amount of Ten Thousand Dollars ($10,000) or more, for
borrowed money or under any lease;
(e) The
dissolution, terminate of existence, merger or consolidation of the
Borrower, or a sale of all or substantially all of the assets of
the Borrower out of the ordinary course of business;
(f) A
change in the beneficial ownership of fifty percent (50%) or more
(in the aggregate) of the issued and outstanding voting capital
stock of the Borrower from the ownership on the date of this Loan
Agreement, whether through transfer, issuance of stock or
membership interest or otherwise;
(g) The
occurrence of an event of default not cured within any applicable
remedy period, under any obligations of the Borrower to the Lender
other than under the Loan Documents, whether created prior to,
concurrent with, or subsequent to obligations arising out of the
Loan Documents;
(h) The
Borrower shall: (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of any of its property, (ii) admit
in writing its inability to pay its debts as they mature, (iii)
make a general assignment for the benefit of creditors, (iv) be
adjudicated a bankrupt or insolvent, (v) file a voluntary petition
in bankruptcy, or a petition or an answer seeking reorganization to
take advantage of any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law or
statute, or an answer admitting the material allegations of a
petition filed against it or he in any proceeding under any such
law or (vi) offer or enter into any compromise, extension or
arrangement seeking relief or extension of its debts;
(i) In
the event that proceedings shall be commenced or an order, judgment
or decree shall be entered against the Borrower, without the
application, approval or consent of the Borrower in or by any court
of competent jurisdiction, relating to the bankruptcy, dissolution,
liquidation, reorganization or the appointment of a receiver,
trustee or liquidator of the Borrower of all or a substantial part
of their or its assets, and such proceedings, order, judgment or
decree shall continue undischarged or unstayed for a period of 90
days;
4
(j)
A final and unappealable judgment for the
payment of money in excess of Ten Thousand Dollars ($10,000) shall
be rendered against the Borrower and the same shall remain
undischarged for a period of 60 days, during which period of
execution shall not be effectively stayed.
Upon the occurrence
of any Event of Default, automatically upon an Event of Default
under subsection (h) or (i) of this Section or otherwise at the
election of the Lender, (i) all of the obligations of the Borrower
to the Lender, under this Loan Agreement or the Loan Documents,
will immediately become due and payable without further demand,
notice or protest, all of which are hereby expressly waived; (ii)
the Lender may proceed to protect and enforce its rights, at law,
in equity, or otherwise, against the Borrower and may proceed to
liquidate and realize upon any of its collateral in accordance with
the rights of a mortgagee or a security party under the Uniform
Commercial Code, any other applicable law, any Loan Document;
and/or (iii) the Lender’s commitment to make further loans
under this Agreement or any other agreement with the Borrower will
immediately cease and terminate.
(i) The
Borrower hereby waives, to the fullest extent permitted by law,
presentment, notice, protest and all other demands and notices of
any description and assent (1) to any extension of the time of
payment or any other indulgence, (2) to any substitution, exchange
or release of collateral, and (3) to the release of any other
person primarily or secondarily liable for the obligations
evidenced hereby.
(ii) No
delay or omission on the part of the Lender in exercising any
right, privilege, or remedy hereunder shall operate as a waiver of
such right, privilege, or remedy or of any other right, privilege,
or remedy under the Loan Documents. No waiver of any right,
privilege or remedy or any amendment to the Loan Documents shall be
effective unless made in writing and signed by the Lender. A waiver
on any one occasion shall not be construed as a bar to or waiver of
any such right, privilege and/or remedy on any future occasion. No
single or partial exercise of any power hereunder shall preclude
other or future exercise thereof or the exercise of any other
right. The acceptance by the Lender of any payment after any
default under the Loan Documents shall not operate to extend the
time of payment of any amount then remaining unpaid hereunder or
constitute a waiver of any rights of the Lender hereof under the
Loan Documents.
(d) Governing
Law. The Loan Documents and all rights and obligations
thereunder, including matters of construction, validity, and
performance, shall be governed by the laws of the Commonwealth of
Pennsylvania.
5
Borrower:
|
Lender:
|
Ocean Thermal
Energy Corporation
|
DCO Energy,
LLC
|
Attention: Xxxxxx
Xxxxxxx,
|
Attention: Xxxxx
XxXxxx,
|
Chairman &
CEO
|
President &
CEO
|
000 Xxxxx Xxxxx
Xxxxxx
|
0000 Xxxxxxx
Xxxxxxx, Xxxx. 000
|
Xxxxxxxxx, XX
00000
|
Xxxx Xxxxxxx, XX
00000
|
Phone:
000-000-0000
|
Phone:
000-000-0000
|
E-mail:
xxxxxx@xxxxxxxxxxxxxx.xxx
|
Email:
xxxxxxx@xxxxxxxxx.xxx
|
|
|
With a copy
to:
|
With copy
to:
|
Ocean Thermal
Energy Corporation
|
Chief Financial
Officer, DCO Energy, LLC
|
Attention: Xxxxxx
Xxxxxx, General Counsel
|
Attention: Xxxxxxx
Xxxxxxx
|
0000 Xxxxxxxxx
Xxxxxxx Xxxxx, #0000
|
000 Xxxxx Xxxxx,
Xxxxx 000
|
XxXxxx XX
00000
|
Xxxxxxxxxxxxx, XX
00000
|
Phone:
000-000-0000
|
Phone:
000-000-0000
|
Email:
xxxxxxxx@xxx.xxx
|
Email:
xxxxxxxx@xxxxxxx.xxx
|
6
(j)
Rights Cumulative. All
rights and remedies of the Lender, whether granted herein or
otherwise, shall be cumulative and may be exercised singularly or
concurrently and the Lender shall have, in addition to all other
rights and remedies, the rights and remedies of a secured party
under the Uniform Commercial Code of Pennsylvania. Except as
otherwise provided by law, the Lender shall have no duty as to the
collection or protection of the collateral or of any income thereon
or as the preservation of any rights pertaining thereto beyond the
safe custody thereof.
|
OCEAN THERMAL
ENERGY CORPORATION
By: /s/ Xxxxxxx
Xxxx
Name: Xxxxxxx Xxxx,
PhD
Title: Director
& Chief Science Officer
DCO ENERGY,
LLC
By: /s/ Xxxxx
XxXxxx
Name: Xxxxx
XxXxxx
Title: President
& CEO
|
7
PROMISSORY
NOTE
$1,000,000
|
February 10,
2012
|
FOR VALUE RECEIVED,
Ocean Thermal Energy Corporation, a Delaware corporation with an
address of 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (the
“Borrower”), hereby promise to pay to the order of DCO
Energy, LLC, a New Jersey limited liability company with offices at
0000 Xxxxxxx Xxxxxxx, Xxxxxxxx 000, Xxxx Xxxxxxx, Xxx Xxxxxx 00000
(the “Lender”), at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx 000,
Xxxx Xxxxxxx, Xxx Xxxxxx 00000, or at any other place designated to
the Borrower by the Lender in writing, the principal sum of One
Million Dollars ($1,000,000), with interest as herein specified,
and under the terms and conditions stated herein.
All amounts payable
hereunder are payable in lawful money of the United States of
America at the address of the Lender set forth above in immediately
available funds. Prior to a Default, all payments shall be applied
first on account of other charges, second to accrued interest due
on the unpaid balance of principal and finally the remainder of
such payments shall be applied to unpaid principal. If a Default
occurs, payments and monies received may be applied in any manner
and order deemed appropriate by the Lender.
In no event shall
the rate of interest hereunder be in excess of the maximum amount
permitted by law. In the event the rate of interest hereunder is
determined to be in excess of the maximum amount permitted by law,
such interest rate shall be automatically decreased to the maximum
rate permitted by law.
In addition to all
other rights contained in this Note, if a Default (defined herein)
occurs and as long as a Default continues, all outstanding sums
hereunder shall bear interest at the interest rate otherwise
prevailing under the preceding paragraph, plus 3% (the
“Default Rate”). The Default Rate shall also apply from
acceleration until all unpaid sums and obligations (whether matured
or contingent) hereunder and any judgment thereon are paid in
full.
1
When a Default
occurs, the Lender, at its option, may declare the entire unpaid
balance of principal of this Note, unpaid interest thereon and all
other charges, costs and expenses provided for herein, in the Loan
Agreement and/or any of the Loan Documents, and/or pursuant to any
other agreements between Borrower and Lender, immediately due and
payable without notice to or demand upon the Borrower. Upon the
occurrence of a Default, the Lender shall have all of the rights
and remedies with respect to this Note and with respect to all of
the Lender’s collateral and security as described or in the
Loan Agreement, the Loan Documents, in this Note, and/or otherwise
as provided for by law, in equity, mid otherwise, including the
rights of a secured party under the Uniform Commercial Code of
Pennsylvania.
10. Governing
Law. This Note shall be construed in accordance with the
domestic internal laws of the Commonwealth of Pennsylvania, without
reference to any conflict of laws provisions, as a Note made,
delivered and to be wholly performed within the Commonwealth of
Pennsylvania.
2
11. Judicial
Proceedings. Any suit, action, or proceeding, whether claim
or counterclaim, brought or instituted by the Borrower or the
Lender, or any of their successors or assigns, on or with respect
to this Note or the dealings of the Borrower or the Lender with
respect hereto, shall be tried only by a court and not by a jury.
THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR
PROCEEDING. In connection therewith, the Borrower agrees that any
suit, action, or proceeding arising hereunder or with respect
hereto will be instituted in the Court of Common Pleas of York
County, Pennsylvania, or the United States District Court for the
Middle District of Pennsylvania, and irrevocably and
unconditionally submits to the jurisdiction of each such Court for
such purpose. Further, the Borrower waives any right it may have to
claim or recover, in any such suit, action or proceeding, any
special, exemplary, punitive, or consequential damages or any
damages other than, or in addition to, actual damages. THE BORROWER
ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH IS A SPECIFIC AND
MATERIAL ASPECT OF THIS NOTE AND THAT THE LENDER WOULD NOT EXTEND
CREDIT IF THE WAIVERS SET FORTH IN THIS PARAGRAPH WERE NOT A PART
OF THIS NOTE.
12. Confession
of Judgment. Upon Default, the Borrower hereby irrevocably
authorizes the Prothonotary or any attorney of any court of record
in Pennsylvania or elsewhere to appear for and confess judgment
against the Borrower for any and all amounts unpaid hereunder,
together with any other charges, costs and expenses for which
Borrower is liable under this Note, and together with fees of
counsel in the reasonable amount of five percent (5%) of all of the
foregoing (but in no event less than $5,000.00) and costs of suit,
releasing all errors and waiving all rights of appeal. If a copy of
this Note, verified by affidavit, shall have been filed in such
proceeding, it shall not be necessary to file the original as a
warrant of attorney. The Borrower hereby waives the right to any
stay of execution and the benefit of all exemption laws now or
hereafter in effect. No single exercise of this warrant and power
to confess judgment shall be deemed to exhaust this power, whether
or not any such exercise shall be held by any court to be invalid,
voidable or void, but this power shall continue undiminished and
may be exercised from time to time as often as the Lender shall
elect until all sums due hereunder shall have been paid in full.
Interest shall continue to accrue after entry of judgment
hereunder, by confession, default, or otherwise, at the higher of
the prevailing rate of interest under this Note, or the judgment
rate of interest under applicable law. All waivers granted in this
paragraph are given to the extent permitted by the Pennsylvania
Rules of Civil Procedure.
13. NOTICE:
THIS NOTE CONTAINS, AT PARAGRAPH 12, A WARRANT OF ATTORNEY TO
CONFESS JUDGMENT AGAINST THE BORROWER. IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST THE BORROWER, THE BORROWER
HEREBY KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY, AND ON THE ADVICE
OF SEPARATE COUNSEL OF THE BORROWER, UNCONDITIONALLY WAIVES ANY AND
ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN
OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS
OF THE UNITED STATES, THE COMMONWEALTH OF PENNSYLVANIA, OR OF ANY
OTHER STATE.
BORROWER:
OCEAN THERMAL
ENERGY CORPORATION
By: /s/ Xxxxxxx
Xxxx, PhD
Name: Xxxxxxx Xxxx,
PhD
Title: Director
& Chief Science Officer
3
DISCLOSURE FOR
CONFESSION OF
JUDGMENT AND
EXECUTION FOR NON-INDIVIDUALS
DATE: February 10,
2012
1.
TODAY, THE UNDERSIGNED FIRM IS
EXECUTING A PROMISSORY NOTE AND OTHER RELATED INSTRUMENTS FOR
$1,000,000, OBLIGATING THE UNDERSIGNED FIRM TO PAY THAT
AMOUNT.
2.
A
REPRESENTATIVE OF THE LENDER (OR OUR INDEPENDENT LEGAL COUNSEL)
(THE “REPRESENTATIVE”) HAS EXPLAINED TO US IN OUR
CAPACITIES AS A REPRESENTATIVE OF THE UNDERSIGNED FIRM THAT THE
NOTE THE UNDERSIGNED FIRM IS SIGNING CONTAINS WORDING THAT WOULD
PERMIT THE LENDER TO OBTAIN A JUDGMENT AGAINST THE UNDERSIGNED FIRM
AT THE COURTHOUSE. THE REPRESENTATIVE HAS ALSO EXPLAINED TO US IN
OUR CAPACITIES OF PRESIDENT AND SECRETARY RESPECTIVELY OF THE
UNDERSIGNED FIRM THAT THE JUDGMENT MAY BE OBTAINED AGAINST THE
UNDERSIGNED FIRM WITHOUT NOTICE TO THE UNDERSIGNED FIRM AND WITHOUT
OFFERING THE UNDERSIGNED FIRM AN OPPORTUNITY TO DEFEND AGAINST THE
ENTRY OF THE JUDGMENT, AND THAT THE JUDGMENT MAY BE COLLECTED BY
ANY LEGAL MEANS.
3.
THE REPRESENTATIVE HAS ALSO EXPLAINED
TO US IN OUR CAPACITIES AS A REPRESENTATIVE OF THE UNDERSIGNED FIRM
THAT COLLECTION OF THE JUDGMENT MAY BE ACCOMPLISHED BY THE ISSUANCE
OF A WRIT OF EXECUTION, GARNISHMENT, LEVY AND/OR OTHER EXECUTION
PROCEEDINGS WHICH MAY BE COMMENCED AGAINST THE UNDERSIGNED FIRM BY
THE LENDER WITHOUT PRIOR NOTICE AND HEARING AND THAT EXECUTION
PROCEEDINGS MAY INVOLVE THE SEIZURE AND SALE OF THE UNDERSIGNED
FIRM’S PROPERTY BY A SHERIFF, XXXXXXXX OR OTHER
AUTHORITY.
4.
IN SIGNING THE NOTE, THE UNDERSIGNED
FIRM IS KNOWINGLY, UNDERSTANDINGLY AND VOLUNTARILY CONSENTING TO
THE CONFESSION OF JUDGMENT AND THE UNDERSIGNED FIRM IS WAIVING THE
UNDERSIGNED FIRM’S RIGHTS, TO THE EXTENT PERMITTED BY LAW, TO
RESIST THE ENTRY OF JUDGMENT AGAINST THE UNDERSIGNED FIRM AT THE
COURTHOUSE INCLUDING:
(a) THE
RIGHT TO NOTICE AND A HEARING;
(b) THE
RIGHT TO REDUCE OR SET-OFF A CLAIM BY DEDUCTING A CLAIM THE
UNDERSIGNED FIRM MAY HAVE AGAINST THE LENDER (CALLED THE
“RIGHT OF DEFALCATION”);
(c) RELEASE
OF ERROR;
(d) INQUEST
(THE RIGHT TO ASCERTAIN WHETHER THE RENTS AND PROFITS OF THE
UNDERSIGNED FIRM’S REAL ESTATE WILL BE SUFFICIENT TO SATISFY
THE JUDGMENT WITHIN SEVEN YEARS);
(e) STAY
OF EXECUTION;
(f)
EXEMPTION LAWS NOW IN FORCE OR
HEREAFTER TO BE PASSED;
(g) THE
RIGHT TO DEFEND AGAINST THE ENTRY OF JUDGMENT AGAINST THE
UNDERSIGNED FIRM.
5.
IN SIGNING THE NOTE, THE
UNDERSIGNED FIRM IS KNOWINGLY, UNDERSTANDINGLY AND VOLUNTARILY
CONSENTING TO THE ISSUANCE AND PURSUIT AGAINST THE UNDERSIGNED FIRM
OF EXECUTION, GARNISHMENT, LEVY AND/OR OTHER EXECUTION PROCEEDINGS
AND WAIVING THE UNDERSIGNED FIRM’S RIGHTS, TO THE EXTENT
PERMITTED BY LAW, TO NOTICE AND A HEARING PRIOR TO THE ISSUANCE AND
PURSUIT OF EXECUTION, GARNISHMENT, LEVY AND/OR OTHER EXECUTION
PROCEEDINGS.
6.
THE UNDERSIGNED FIRM CERTIFIES THAT THE
UNDERSIGNED FIRM HAS DISCUSSED THIS DISCLOSURE WITH THE UNDERSIGNED
FIRM’S ATTORNEY-AT-LAW AND THE ATTORNEY-AT-LAW FULLY
EXPLAINED TO THE UNDERSIGNED FIRM THE CONTENTS AND MEANING OF THIS
DISCLOSURE.
4
THE UNDERSIGNED
FIRM IS A CORPORATION WHICH IS INCORPORATED UNDER THE LAWS OF THE
STATE OF DELAWARE AND THE UNDERSIGNED INDIVIDUALS ARE THE
REPRESENTATIVES OF THE UNDERSIGNED FIRM DULY AUTHORIZED TO EXECUTE
THIS DISCLOSURE ON BEHALF OF THE UNDERSIGNED FIRM. WE CERTIFY THAT
THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN WE INITIALED AND
SIGNED IT, AND THAT THE UNDERSIGNED FIRM RECEIVED A COPY OF THE
DISCLOSURE AT THE TIME OF SIGNING.
TERMS USED HEREIN
SHALL BE CONSTRUED AS USED AND/OR DEFINED IN THE NOTE.
NAME OF
FIRM:
|
OCEAN THERMAL
ENERGY CORPORATION
|
|
|
|
By: /s/ Xxxxxxx
Xxxx, PhD
|
|
Name: Xxxxxxx Xxxx,
PhD
|
|
Title: Director
& Chief Science Officer
|
STATE OF
HAWAII
|
)
|
|
ss.
|
CITY AND COUNTY OF
HONOLULU
|
)
|
On this 13th day of
February, 2012, before me appeared XXXXXXX XXXX, PHD, to me
personally known, who being by me duly sworn, did say that he is
the Director & Chief Science Officer of OCEAN THERMAL ENERGY
CORPORATION, a Delaware corporation; and that said instrument was
signed on behalf of OCEAN THERMAL ENERGY CORPORATION, and that said
officer acknowledged said instrument to be the fee act and deed of
OCEAN THERMAL ENERGY CORPORATION.
/s/ Xxx X.
Xxxxxxx
|
Print Name: Xxx X.
Xxxxxxx
|
Notary Public,
State of Hawaii
|
My commission
expires: 6/2/2014
|
NOTARY
CERTIFICATION STATEMENT
Document
Identification or Description:
DISCLOSURE FOR
CONFESSION OF JUDGMENT AND EXECUTION FOR
NON-INDIVIDUALS
(Put title of
document, together with Apt. No. and Name of Project)
Document Date:
2/13/2012
No. of Pages: 7
Jurisdiction: First Circuit (in which notarial act is
performed)
/s/ Xxx X.
Xxxxxxx
Signature of
Notary
Date of
Notarization and Certification Statement
[notary
stamp]
(Official Stamp or
Seal)
Printed Name of
Notary: Xxx X. Xxxxxxx
5
WARRANT
to Purchase up to
3,295,761 Shares of the
Common Stock, $-0-
Par Value Per Share,
of
OCEAN
THERMAL ENERGY CORPORATION
This is to certify
that, for value received, DCO Energy, LLC (“Lender”) or
any permitted transferee (Lender or such transferee being
hereinafter called the “Holder”) is entitled to
purchase, subject to the provisions of this Warrant, from Ocean
Thermal Energy Corporation, a Delaware corporation
(“OTEC”), at any time on or after the date hereof, an
aggregate of up to 3,295,761 fully paid and non-assessable shares
of common stock, $ -0- par value (the “Common Stock”),
of OTEC at a price per share equal to $0.50, subject to adjustment
as herein provided (the “Exercise Price”).
Upon such
presentation and surrender, OTEC shall issue promptly (and within
one business day if reasonably requested by the Holder) to the
Holder or its assignee, transferee or designee the number of shares
of Common Stock to which the Holder is entitled hereunder. OTEC
covenants and warrants that such shares of Common Stock, when so
issued, will be duly authorized, validly issued, fully paid and
non-assessable, and free and clear of all liens and
encumbrances.
If this Warrant is
exercised in part only, OTEC shall, upon surrender of this Warrant
for cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder thereof to purchase the balance of the shares
of Common Stock issuable hereunder. Upon receipt by OTEC of this
Warrant, in proper form for exercise, the Holder shall be deemed to
be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of
OTEC may then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the
Holder. OTEC shall pay all expenses, and any and all United States
federal, state and local taxes and other charges, that may be
payable in connection with the preparation, issuance and delivery
of stock certificates pursuant to this Paragraph 1 in the name of
the Holder or its assignee, transferee or designee.
1
2
3
(A) Without
limiting the foregoing or any remedies available to the Holder, it
is specifically acknowledged that the Holder would not have an
adequate remedy at law for any breach of the provisions of this
Warrant and shall be entitled to specific performance of
OTEC’s obligations under, and injunctive relief against any
actual or threatened violation of the obligations of any person
subject to, this Warrant.
(B) The
Holder shall not, by virtue of its status as Holder, be entitled to
any rights of a stockholder in OTEC.
Dated: February 10,
2012
|
OCEAN THERMAL
ENERGY CORPORATION
|
|
|
|
By: /s/ Xxxxxxx
Xxxx, PhD
|
|
Name: Xxxxxxx Xxxx,
PhD
|
|
Title: Director
& Chief Science Officer
|
FORBEARANCE
AND LOAN EXTENSION AGREEMENT
This FORBEARANCE AND LOAN
EXTENSION AGREEMENT (this “Amendment”), is entered into this
1st day
of April, 2016, by and between OCEAN THERMAL ENERGY CORPORATION, a
Delaware corporation with an address of 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 (the “Borrower”), and DCO ENERGY, LLC, a
New Jersey limited liability company with offices at 0000 Xxxxxxx
Xxxxxxx, Xxxxxxxx 000, Xxxx Xxxxxxx, Xxx Xxxxxx 00000 (the
“Lender”), on
the following:
Premises
Borrower and Lender entered
into that certain Loan Agreement as of February 10, 2012 (the
“Loan
Agreement”), providing for a loan of $1,000,000 from
Lender to Borrower (the “Loan”). The obligation to repay
the Loan is evidenced by that certain Promissory Note of even date
executed and delivered by Borrower to Lender (the
“Note”). The
obligations evidenced by the Loan Agreement and Note are secured by
a lien created under a Security Agreement dated as of the date of
the Note and Loan Agreement. As additional consideration for the
Loan, Borrower granted to Lender a warrant to purchase 3,295,761
shares of Borrower’s common stock at a price of $0.50 per
share at any time on or before February 3, 2015 (the
“Warrant”). The
Loan Agreement, the Note, the Security Agreement, and the Warrant
are together referred to as the “Loan Documents.” Pursuant to the
terms of the Loan Documents, the Note was payable in full on or
before February 3, 2015. The Note was not paid when due and is now
in default.
Lender desires to forbear
from seeking collection of the Note and exercising its remedies
under the Loan Documents in order to enhance its financial recovery
and obtain an extension of the Warrant.
Agreement
NOW THEREFORE, for and in
consideration of the foregoing premises, which are incorporated
herein by reference, the mutual promises and covenants set forth
herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree
as follows.
DATED as of the year and date first
above written by the undersigned duly authorized
signatories.
BORROWER:
OCEAN THERMAL
ENERGY CORPORATION
By: /s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: Chairman
& CEO
LENDER
DCO ENERGY,
LLC
By: /s/ Xxxxx
XxXxxx
Name: Xxxxx
XxXxxx
Title: President
& CEO