Exhibit 10.9
INTER-CREDITOR AGREEMENT
INTER-CREDITOR AGREEMENT, dated as of October 30, 1998, by and
among Sabal Corp., a Nevada Corporation (the "Debtor"), and EXCAL ENERGY
CORPORATION, a Michigan corporation ("ExCal"), BISCAYNE PETROLEUM
CORPORATION, an Ohio corporation ("Biscayne"), and Xxxxx Xxxxxxxx
("Xxxxxxxx") (ExCal, Biscayne, and Xxxxxxxx being referred to collectively
herein as "Creditors").
WHEREAS, Debtor has made a promissory note in favor of ExCal in the
original principal amount not to exceed $500,000, a copy of which is attached
hereto as Exhibit A-1; and
WHEREAS, Debtor has made a promissory note in favor of Biscayne in the
original principal amount of $97,808.87 copy of which is attached hereto as
Exhibit A-2; and
WHEREAS, Debtor has made a promissory note in favor of Xxxxxxxx in the
original principal amount of $113,697.98, a copy of which is attached hereto
as Exhibit A-3; and
WHEREAS, the Creditors have reached agreement among themselves and
with the Debtor with respect to the repayment of the various promissory notes
in certain circumstances; and
WHEREAS, the Debtor and the Creditors wish to reduce their agreement
to writing and with the intention of being bound hereby:
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and with the understanding and expectation that each party
hereto intends to rely upon the representations and promises of the remaining
parties hereto, the Debtor and the Creditors hereby agree as follows:
1. AUTHORIZATION. The execution, delivery and performance by each
party hereto (i) have been duly authorized by all necessary corporate action,
(ii) do not and will not contravene the charter or by-laws, law or any
contractual restriction binding on or otherwise affecting such party.
2. ORDER OF PAYMENTS. Notwithstanding any provision to the
contrary in the promissory notes made by Debtor in favor of the Creditors, in
the event of a sale of assets by Debtor other than in the ordinary course of
business (but not in the case of a permitted sale of all or substantially all
of the assets of Debtor), the net proceeds of such sale shall be immediately
paid to the Creditors, whether as prepayment or otherwise, as follows: Debtor
shall immediately pay each of the Creditors that percentage of the net
proceeds calculated by multiplying the net proceeds by the product of (x) a
fraction the numerator of which shall be the principal balance together with
any accrued but unpaid interest then outstanding with respect to that
Creditor's promissory note (the "Outstanding Balance"), and the denominator
of which shall be the aggregate Outstanding Balance of all Creditors'
promissory notes; and (y) 100.
3. NET PROCEEDS. For purposes of this Agreement, net proceeds
shall mean gross proceeds, whether in cash or in kind, less costs of
advertising or brokerage commissions paid to non-affiliates of Debtor in
connection with such sale.
4. ASSETS. For purposes of this Agreement, assets shall include
real property, personal property, buildings, furniture, fixtures, machinery,
motor vehicles, equipment, leases, contract rights, inventory, and
securities, whether now owned or hereafter acquired.
5. SECURITY INTERESTS. Except with respect to the General
Security Agreement dated as of October 30, 1998 made by Debtor in favor
of ExCal, each of the Creditors warrants and represents to the others that
he/it does not, by virtue of the promissory notes that are exhibits hereto or
otherwise, have a security interest in any property of the Debtor.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
DEBTOR:
SABAL CORP.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: President
CREDITORS:
EXCAL ENERGY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
BISCAYNE PETROLEUM CORPORATION, an
Ohio corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Its: President
Xxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
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