LOAN AGREEMENT-3rd Extension
EXHIBIT
10.18
LOAN
AGREEMENT-3rd Extension
This Loan
Agreement (the “Agreement”) is entered into, between the EFT Biotech Holdings,
Inc. (“Lender”), located in City of Industry, CA, EFT Investment Co., LTD., a
wholly owned subsidiary of Lender (Subsidiary), located in Taipei, Taiwan and
Excalibur International Marine Corporation (“Borrower”) located in Taipei,
Taiwan.
AUTHORITY
AND LOAN
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-Lender
has approved Borrower’s loan originally dated November 25, 2008. Lender’s
approval of Borrower’s loan under this Agreement are made on reliance that
borrower will pay back upon secure a loan from local banks in Taiwan. By
executing this Agreement the Borrower represents under penalty of perjury
are true and accurate in all
respects.
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-Lender
agreed to grant another extension (3rd
extension) for the note in the amount of US Five Hundred Thousand Dollars
(US$500,000), evidenced by a Promissory Note (the “Promissory Note”)
attached hereto as Exhibit A.
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-Lender
has approved to extend the Loan for additional twelve (12) months due at
November 25, 2009 to November 25, 2010 with new interest rate of eight
(8%) per annum under this
Agreement.
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PURPOSE
The
Borrower agrees to expend all funds disbursed pursuant to this Agreement only for the
purposes of its business operation and in the amounts set forth in the
Borrower’s Budget. Any other use of funds disbursed hereunder shall require
prior written approval by Lender.
LOAN
REPAYMENT AND INTEREST
All Loan
funds disbursed hereunder, together with all interest payable thereon, shall be
repaid to Lender in accordance with the terms of the Promissory Note. The Loan
shall bear simple interest at the monthly rate set forth in the attached
Promissory Note on the principal balance of Loan funds disbursed to the
Borrower. Payment of said interest shall be due at the end of the loan term, and
interest shall accrue from the time of disbursement of Loan funds to the
Borrower until receipt of full Loan repayment to Lender.
EFFECTIVE
DATE OF AGREEMENT
This
Agreement shall become effective on the date it is approved and executed by
Lender at City of industry, California (the “Effective Date”).
The
Borrower agrees to complete performance of its obligations within the time
periods required by Lender and any fully executed documents, if
applicable.
PREPAYMENT
Borrower
shall have the right to prepay all or any part of the outstanding balance of
this Loan at any time without penalty. Any partial prepayment will not excuse
any later scheduled payments until the Loan is paid in full. Prepayments shall
be applied first to the payment of any outstanding late fees, then to interest
and then to principal installments.
PROMISSORY
NOTE
In order
to evidence its debt to Lender hereunder, the Borrower agrees to,
contemporaneously with the execution of this Agreement, execute and deliver to
Lender the Promissory Note (attached as Exhibit A hereto).
ACCOUNTS
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A.
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The
Borrower agrees to establish on its books a separate account for this
Loan. This account shall be maintained, and is subject to review and audit
by Lender, as long as the Loan obligation remains
unsatisfied.
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B.
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The
Borrower further agrees to maintain records that accurately and fully show
the date, amount, purpose, and payee of all expenditures drawn on said
account for three (3) years after the date Lender determines this Loan is
repaid in full.
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C.
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The
Borrower further agrees to allow Lender, or its designated
representatives, on written request, to have reasonable access to, and the
right of inspection of, all books and records that pertain to the Loan
account.
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DEFAULT
The
Borrower’s failure to comply with any of the terms of the Agreement shall
constitute a breach of this Agreement and an Event of Default. In the event of
any default, Lender may, in its discretion, declare this Agreement to have been
breached and be released from any further performance hereunder. Events of
default are detailed in the Promissory Note and are incorporated herein by
reference.
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A.
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In
the event of any default or breach of this Agreement by the Borrower,
Lender, without limiting any of its other legal rights or remedies, may
accelerate the Loan and declare any remaining unpaid principal balance,
along with accrued interest and late fees, immediately due and payable, as
provided in the Promissory Note evidencing this
Loan.
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2
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B.
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In
the event of any default or breach of this Agreement by the Borrower,
Lender shall have priority right above any secured or unsecured creditor
to declare any remaining unpaid principal balance, along with accrued
interest and late fees, immediately due and payable, as provided in the
Promissory Note evidencing this
Loan.
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GENERAL
TERMS
A. Indemnification
by Borrower
The
Borrower agrees to indemnify, defend, and save harmless Lender and its officers,
agents, and employees from any and all claims, losses, or costs (including
reasonable attorney fees) arising out of, resulting from, or in any way
connected with the Loan or this Agreement, or the financing or the operation of
the business financed with the Loan.
B. Independent
Capacity
The
Borrower, and the agents and employees of Borrower, in the performance of this
Agreement, shall and do act in an independent capacity, and they acknowledge and
agree that they are not officers or employees or agents of the Lender and
accordingly they are not authorized to act, and may not act, in such
capacity.
D.
Assignment
Without
the written consent of Lender, this Agreement is not assignable or transferable
by Borrower either in whole or in part. Lender may assign its rights under this
Agreement for security purposes, and in such event the assignee of this
Agreement shall be entitled to enforce the provisions hereof and shall be a
third party beneficiary of this Agreement.
E. Amendment
No
amendment or variation of the terms of this Agreement shall be valid unless made
in writing and signed by the parties hereto, and no oral understanding or
agreement not incorporated herein shall be binding on any of the parties
hereto.
G. Severability
In the
event that any provision of this Agreement is unenforceable or held to be
unenforceable, then the parties agree that all other provisions of this
Agreement continue to have force and effect and shall not be affected
thereby.
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H. Governing
Law and Venue
This
Agreement is governed by and shall be interpreted in accordance with the laws of
the State of California. Venue shall be in Los Angeles County. In any contest
arising under the Loan Documents, Lender and the Borrower agree to waive a trial
by jury.
I. Borrower
Authorization
The
Borrower certifies that it has full power and authority to enter into this
Agreement and this Agreement has been duly authorized, executed and delivered by
the Borrower. The Borrower acknowledges that the resolution of its governing
body or other official action authorizing it to enter into this Agreement also
authorizes such further acts as are necessary, including execution of the
Promissory Note as well as Security Agreement, if any, to implement and further
the intent of this Agreement.
NOTICE
Any
notice required to be given to Lender hereunder shall be sent to 00000 Xxxxxxxxx
Xx., Xxxxx 000, Xxxxxxxxxx 00000, attention Xxxxxx Xxxxx, Secretary, or at such
other address as Lender may designate in writing to the Borrower. Any notice
required to be given to the Borrower hereunder shall be sent to the address
shown below the Borrower’s execution of this Agreement, or at such other address
as the Borrower shall designate in writing to Lender. Notice to either party may
be given using the following delivery methods: U.S. Mail, overnight mail, or
personal delivery, providing evidence of receipt, to the respective parties
identified in this Agreement. Delivery by fax or e-mail is not considered notice
for the purposes of this Agreement. Notice shall be effective when received,
unless otherwise stated in this Agreement.
IN
WITNESS WHEREOF, this Loan Agreement has been executed by the parties
hereto.
Lender
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Borrower
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/s/ Xxxx Xxx
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/s/ Pyng Soon
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Xxxx
Xxx
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Pyng
Soon
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Executive
Director
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Chairman
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EFT
BioTech Holdings, Inc.
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Excalibur
International Marine
Corporation
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4
EXHIBIT A
PROMISSORY
NOTE
1.
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For
value received, the undersigned, (hereinafter referred to as the
“Borrower”), promises to pay to the order of the EFT Investment Co., LTD,
a wholly owned subsidiary of EFT BioTech Holdings, Inc. (hereinafter
referred to as “Lender”), at its principal place of business at
00000 Xxxxxxxxx Xx., Xxxxx 000, Xxxx xx Xxxxxxxx, Xxxxxxxxxx 00000, or at
such other place as Lender may designate, the principal sum of US Five
Hundred Thousand Dollars (US$500,000) or such
lesser amount as shall equal the aggregate amount disbursed to the
Borrower by Lender pursuant to the Agreement between the Borrower and
Lender, together with interest thereon at the rate of eight (8%) percent
per annum on the unpaid principal balance, computed from the date of each
disbursement to the Borrower, until the Loan is repaid by the Borrower.
Principal, together with interest thereon, is due and payable at the end
of the loan terms, until said principal and interest shall be paid in
full.
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2.
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The
Borrower may prepay this Promissory Note in full or in part, without
penalty. Any partial prepayment will not excuse any later scheduled
payments until the Loan is paid in full. Prepayments shall be applied
first to the payment of any outstanding late fees, then to interest and
then to principal installments.
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3.
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On
the occurrence of any event of default, as defined in paragraph 4 of this
Promissory Note, Lender, at its sole election, may take any or all of the
following actions:
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A.
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Declare
all or any portion of the principal balance, along with accrued interest
and late fees, under this Promissory Note to be immediately due and
payable and may proceed to enforce this Promissory Note, upon the
expiration of not less than thirty (30) days after the date written notice
of Lender’s decision to accelerate is sent to Borrower. All amounts due
after acceleration shall bear interest at the rate of eight percent (8%)
per annum. Lender may exercise this option to accelerate during any
default by Borrower regardless of any prior
forbearance.
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B.
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Require
Borrower to take any and all action necessary, as security for the loan,
to provide the Vessel as collateral under duly executed security documents
and agrees to be bound by the terms contained therein to Lender as the
Secured Party.
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C.
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Exercise
all of its rights and remedies enumerated herein, which rights are in
addition to and not in limitation of any other rights Lender may have
under the Agreement and applicable
law.
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4.
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Each
of the following events and conditions shall constitute an event of
default under this Promissory Note and the
Agreements:
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1
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A.
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Failure
of the Borrower to repay any principal, accrued interest, and late fees,
if applicable, when due under the terms of this Promissory
Note.
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B.
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Failure
of the Borrower to comply with, and satisfy, all the terms, conditions,
and obligations, required by the Loan Agreement as a condition for this
Loan.
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C.
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Termination
of the Loan Agreement pursuant to the terms thereof or breach by the
Borrower of any terms or conditions of said Loan
Agreement.
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D.
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Failure
of the Borrower to obtain and maintain insurance for the
vessel.
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E.
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Occurrence
of: (1) the Borrower becoming insolvent or bankrupt or being unable
or admitting in writing its inability to pay its debts as they mature or
making a general assignment for the benefit of or entering into any
composition or arrangement with creditors; (2) proceedings for the
appointment of a receiver, trustee, or liquidator of the assets of the
Borrower or a substantial part thereof, being authorized or instituted by
or against the Borrower; (3) proceedings under any bankruptcy,
reorganization, readjustment of debt, insolvency, dissolution, liquidation
or other similar law, or any jurisdiction being authorized or instituted
against the Borrower; or (4) the Borrower ceases operations, is dissolved,
or terminates its existence.
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F.
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Discovery
of any false or misleading statement, warranty, representation, or fact,
whether or not contained in any other Loan Documents, that when made or
furnished to the Lender by or on behalf of the Borrower was relied upon
by Lender and induced it to extend the Loan to
Borrower.
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5.
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No
delay or failure of Lender in the exercise of any right or remedy
hereunder or under any other agreement which secures or is related hereto
shall affect any such right or remedy, and no single or partial exercise
of any such right or remedy shall preclude any further exercise thereof,
and no action taken or omitted by Lender shall be deemed a waiver of any
such right or remedy.
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6.
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Any
notice required to be given to the Borrower hereunder shall be sent to the
address shown on the Loan Agreement, or at such other address as the
Borrower shall designate in writing to Lender. Notice to either party may
be given using the following delivery methods: U.S. Mail, overnight mail,
or personal delivery, providing evidence of receipt, to the respective
parties identified in this Agreement. Delivery by fax or e-mail is not
considered notice for the purposes of this Promissory
Note.
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7.
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Borrower
agrees to pay all costs and expenses, including reasonable attorney fees,
which may be incurred by Lender in the enforcement and defense of the Loan
Agreement, including such costs and expenses incurred in any
appeal.
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8.
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This
Promissory Note shall be binding upon the Borrower and its permitted
successors and assigns and upon Lender and its permitted successors and
assigns. Without the written consent of Lender, this Promissory Note is
not assignable or transferable by Borrower either in whole or in part.
Lender may assign its rights under this Promissory Note for security
purposes, and in such event the assignee of this Promissory Note shall be entitled to enforce the
provisions hereof and shall be a third party beneficiary of this
Promissory Note.
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9.
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This
Promissory Note shall be construed and enforced in accordance with the
laws of the State of California.
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Excalibur International Marine
Corporation
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Borrower
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Name
of Authorized Representative
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Authorized
Signature
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Chairman
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Title
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Date
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3