EXHIBIT 10.14
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SHARE LOAN AGREEMENT AND OPEN ENDED ON DEMAND PROMISSORY NOTE
This loan agreement (agreement) and open-ended, on-demand promissory
note (note) is entered into this 6th day of March, 1998, by and between
Commerce Group Corp., a Delaware corporation, of 0000 Xxxxx 00xx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000-0000, hereinafter referred to as "Commerce"
and Xxxxxx X. Xxxxxxxx who resides at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, hereinafter referred to as "EAM."
WITNESSETH:
Whereas, Commerce is in the process of raising funds whereby its
Commerce/Sanseb Joint Venture, hereinafter referred to as "Joint
Venture," maintains its gold mining operations located in the Republic of
El Salvador, Central America, and Commerce recognizes that the success of
doing so can be performed by obtaining the required funding; and
Whereas, Commerce requires from EAM free and tradeable Commerce
common shares, par value $0.10, for the purpose of having EAM sell said
shares as Commerce's designee to obtain funds for Commerce; and
Whereas, Commerce desires to borrow from EAM, a minimum of 25,000
shares of Commerce common shares, par value $0.10 that EAM personally
owns so that EAM, on behalf of Commerce, can cause the sale of these
shares to provide the cash to Commerce; and
Whereas, EAM is willing to accommodate Commerce by lending the EAM
Commerce common shares to Commerce, providing that such shares are
replaced to EAM with restricted Commerce common shares on an on demand
basis within 30 days from the date the shares are sold or as mutually
agreed; and
Whereas, EAM recognizes that Commerce at this time does not have any
collateral to pledge to assure the return of said borrowed shares,
however, Commerce acknowledges that its Directors have authorized the
Officers of Commerce to replace such shares to EAM by issuing restricted
Commerce common shares from Commerce's authorized shares; and
Whereas, Commerce does recognize that the shares issued by Commerce
to replace the borrowed shares will be restrictive shares which EAM will
not be able to sell in the public market for a period of at least one
year, and these shares will be subject to the Securities and Exchange
Commission Rule 144 until two years have lapsed from the issue date of
such shares; and
Whereas, Commerce agrees to return the Commerce common shares loaned
to Commerce and to pay interest in advance to EAM by paying a sum
equivalent to ten percent (10%) per annum payable with Commerce's
restricted common shares. For example, for each 1,000 shares loaned to
Commerce, EAM will receive in return, one hundred (100) shares as payment
for interest plus the return of the one thousand (1,000) shares borrowed,
for a total of 1,100 Commerce restricted common shares; and
Whereas, EAM is accommodating Commerce, and EAM may continue to do
so in the future, providing that all of the Commerce common shares EAM
will transfer, sell, or pledge on behalf of Commerce will be replaced and
returned to EAM on demand, as agreed, together with the Commerce common
shares due for interest earned; and
Now, Therefore, in consideration of the mutual promises and
undertakings set forth herein, together with other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Commerce agrees to borrow and EAM agrees to loan, from time to
time, such number of free and tradeable Commerce common shares, $0.10 par
value, owned by EAM at such time and in such amounts that Commerce
determines, but in any event, not less than 25,000 common shares.
2. Commerce promises to pay to the order of EAM, no later than
thirty (30) days after the date that the funds have been collected from
the sale of the EAM shares to others the number of the Commerce common
shares borrowed from EAM from time to time or at such time as mutually
agreed. It is agreed by both parties that this is an open-ended,
on-demand promissory note and it may include any future loans of Commerce
common shares made by EAM to or on behalf of Commerce.
3. Commerce promises to pay to EAM, interest at the rate of ten
percent (10%) per annum for a minimum period of one year. The interest
for the first year will be prepaid as mutually agreed or within thirty
(30) days from the date that the funds will have been collected for the
sale of the EAM shares by Commerce issuing to EAM, its restricted common
shares; and thereafter, if all of the loaned shares are not returned,
then interest will be computed and paid monthly on the basis of a 360-day
year of twelve 30-day months. Interest due after the one-year prepayment
will be computed at a rate of fifteen percent (15%) per annum and paid
monthly on the basis of a 360-day year of twelve 30-day months. In lieu
of cash for the payment of interest, Commerce will issue to EAM shares of
Commerce's restricted common shares which shall be computed pursuant to
the following example:
Total number of shares borrowed by Commerce and sold to others 1,000
Interest rate ten percent (10%) per annum x one (1)year 10%
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Number of Commerce common restricted common shares payable as
the interest charge 100
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Total shares to be issued for each 1,000 shares borrowed by
Commerce 1,100
Any fractional difference, if any, shall be rounded off to a whole share.
If Commerce fails to make any payment due under this note within ten
(10) days after it becomes due, or upon any default (other than
non-payment) which is not cured within fifteen (15) days following the
date of mailing or hand delivery of a written notice to Commerce, EAM may
accelerate the entire principal balance of this note and declare the same
immediately due and payable upon written notice or demand. It is
understood and agreed that ten (10) day's written notice is required
prior to any acceleration due to a default in payments.
In the event any payment (including, without limitation, the entire
principal balance due upon maturity) becomes more than fifteen (15) days
past due and upon ten (10) day's written notice from EAM, Commerce shall
pay a late payment charge to EAM equal to five percent (5%) of the entire
unpaid amount (including principal and interest) and the interest rate
will be accelerated to a rate of five percent (5%) over the prime
interest rate charged by the First National Bank of Chicago, on a per
annum basis, payable monthly with Commerce restricted common shares,
until paid.
Presentment, protest, demand, and notice of dishonor are waived.
Commerce agrees to pay all costs and expenses of collection or
foreclosure, including (without limitation) reasonable attorney's fees,
not to exceed one percent (1%) of the value of the loan, except to the
extent limited or prohibited by applicable law.
Without affecting the liability of Commerce, EAM may, with written
notice, accept partial payments, release or impair any collateral
security for the payment of this note or agree not to xxx any party
liable on it, without affecting the liability of any endorser, surety or
guarantor, EAM may, with notice, renew or extend the time for payment.
EAM agrees to execute the attached Investment Letter Agreement in
such form as is attached to this agreement which may be modified from
time to time to conform with the U.S. Securities and Exchange
Commission's modifications, changes, etc., until such time as Commerce
will direct its Transfer Agent to issue its restricted common shares to
EAM.
Commerce agrees to return to EAM the identical number of Commerce
common shares it has borrowed.
Commerce agrees that all payments shall be made to EAM of amounts
equivalent to dividends, and distribution which EAM as owner of the
Commerce common shares are entitled to receive during the period
beginning with the transfer of said common shares by EAM and ending with
the transfer of the identical Commerce common shares returned to EAM.
Commerce agrees not to purposely reduce the risk of loss or
opportunity for gain of EAM of the Commerce common shares in the Commerce
common shares transferred.
Commerce agrees to preserve EAM's voting rights in the Commerce
common shares loaned.
Both parties agree that this is a loan of EAM's shares and not to be
construed as a sale of said shares for EAM's benefit. EAM agrees that
Commerce has the sole right in deciding the selling price of the shares
borrowed from EAM.
This agreement and note is the entire, final and complete agreement
of the parties pertaining to the subject matter hereof, and it supersedes
and replaces all written and oral agreements heretofore made or existing
by and between the parties or their representatives insofar as this
subject matter is concerned. Neither party shall be bound by any
promises, representations or agreements except as are herein expressly
set forth.
This agreement shall not be modified, revoked, released or sooner
terminated unless the parties agree to do so in writing.
This agreement and note is being delivered in and shall be governed
by and construed and enforced in accordance with the laws of the State of
Wisconsin, United States.
This agreement and note shall be binding upon and inure to the
benefit of such parties and subject to its terms, their respective
successors, heirs, assigns and legal representatives.
In Witness Whereof, the parties have executed this agreement and
Commerce has executed the promissory note contained herein on the day and
date first written above.
COMMERCE GROUP CORP.
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
___________________________________ ____________________________________
Xxxxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxxxxx, President
