Exhibit 10.76
LOAN AGREEMENT AND PROMISSORY NOTE
FOR LINE OF CREDIT
March 23, 2000
Los Angeles, California
Upon the written request of LLO-Gas, Inc., a Delaware corporation
(hereinafter referred to as "Debtor"), with a place of business at 00000 Xxxxxx
Xxxxx Xx. 000, Xxxxxx, XX 00000, Atlantic Richfield Company, a Delaware
corporation (hereinafter referred to as "ARCO"), with a place of business at 000
Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, may, in its sole and absolute
discretion, and subject to Debtor's full compliance with the specific terms and
conditions set forth herein, make advances to Debtor ("Revolving Advances") in
an aggregate amount up to, but in any event not greater than, $300,000 (the
"Maximum Revolving Loan Amount"). These Revolving Advances shall be used by
Debtor for the purpose of purchasing gasoline and other product from ARCO,
making royalty payments to ARCO, and for no other purposes whatsoever. ARCO
shall not charge interest on the Revolving Advances made to Debtor, except as
specifically set forth herein. Debtor shall pay to ARCO all charges for
returned items and all other bank charges incurred by ARCO, as well as ARCO's
standard wire transfer charges for each wire transfer made under this Promissory
Note For Line of Credit (this "Promissory Note").
In consideration of and as a material inducement for ARCO to enter into
this Promissory Note, Debtor agrees to obtain a $150,000.00 Letter of Credit
("New Letter of Credit") naming ARCO as the beneficiary. The New Letter of
Credit shall be issued by a financial institution entirely acceptable to ARCO on
terms and conditions entirely acceptable to ARCO, in its sole discretion. The
New Letter of Credit shall remain in effect until December 29, 2000, and will
secure in all respects the obligations of Debtor to ARCO under this Promissory
Note to the full extent of the New Letter of Credit.
The maturity date of this Promissory Note, on which date all principal and
other sums of every kind payable hereunder shall be all due and owing, is
September 22, 2000 (the "Maturity Date"). Debtor shall not request of or
receive from ARCO any further Revolving Advances on or after the Maturity Date
irrespective of whether the entire Maximum Revolving Loan Amount has been
disbursed hereunder prior to the Maturity Date.
If repayment of the amounts due and owing under this Promissory Note is not
received by ARCO on or before the Maturity Date, then in addition to the other
remedies conferred upon ARCO in this Promissory Note, in the MOU, the Promissory
Note with a face amount of Three Hundred and Ninety-Eight Thousand, Three
Hundred Ten Dollars and Eighty-Six Cents ($398,310.86), the Letter of Credit,
the New Letter of Credit, or otherwise at law or in equity, debtor will pay ten
percent (10%) per annum, or the maximum rate of interest permitted by law on any
sums remaining due after the maturity date.
Any of the following events shall be an "Event of Default" under this
Promissory Note: (1) default by Debtor in payment of the entire outstanding
balance of principal and other charges due hereunder on or before the Maturity
Date; (2) breach by Debtor of any term, covenant, condition, agreement,
representation, or warranty set forth herein or in that certain
Memorandum of Understanding between Debtor and ARCO dated March 23, 2000 (the
"MOU") or in that certain Promissory Note, of even date herewith, given by
Debtor to ARCO in the original, principal amount of $398,310.86 (the "Delinquent
Amount Note"); (3) any occurrence having a material adverse effect on that
certain Irrevocable Letter of Credit issued by Sterling National Bank dated
October 22, 1999, and bearing No. SLC 100002 securing the Delinquent Amount
Note, as amended to comply with the MOU (the "Letter of Credit"), including but
not limited to, any cancellation, expiration or withdrawal thereof, or any
reduction in the amount of the Letter of Credit below $322,115.81; (4) any
occurrence having a material adverse effect on the New Letter of Credit,
including, but not limited to, any cancellation, expiration or withdrawal
thereof, or any reduction in the total principal amount available under the New
Letter of Credit below $150,000. Upon the occurrence of an Event of Default
hereunder, then at the option of ARCO, all Revolving Advances made by ARCO to
Debtor which remain outstanding and unpaid shall immediately become due and
payable without notice or demand. No delay or failure by ARCO in the exercise of
any right or remedy provided for hereunder shall be deemed a waiver of such
right by ARCO, and no exercise of any right or remedy shall be deemed a waiver
of any other right or remedy which ARCO has or may have hereunder, under the
MOU, the Delinquent Amount Note, the Letter of Credit, the New Letter of Credit,
at law or in equity.
Upon the occurrence of any Event of Default, ARCO, without notice or
demand, shall have no further obligation of any kind to make Revolving Advances
to Debtor under this Promissory Note or any other agreement between Debtor and
ARCO. The foregoing shall in no way affect, limit, or waive ARCO's sole and
absolute discretion in making or declining to make Revolving Advances under this
Note.
Should it become necessary for ARCO to employ counsel to collect or enforce
this Promissory Note, or to protect the security for the same, Debtor agrees to
pay, to the extent permitted by applicable law, all costs, charges,
disbursements and reasonable attorneys' fees incurred by ARCO in collecting or
enforcing payment thereof or in protecting the same. There is no pre-payment
penalty or premium for early payment of this Promissory Note.
Debtor and all persons liable for the payment of this Promissory Note waive
presentment for payment, demand, protest, and notice of demand, protest and non-
payment, and consent to any and all renewals, extensions or modifications which
might be made by ARCO as to the time of payment of this Promissory Note from
time to time, and further agree that the security for this Promissory Note or
any portion thereof may from time to time be modified or released in whole or in
part without affecting the liability of any party liable for the payment of this
Promissory Note. Debtor and all persons liable hereon or liable for the payment
of this Promissory Note also hereby waive (i) the right, if any, to the benefit
of, or to direct the application of, any security hypothecated to ARCO until all
indebtedness of Debtor to ARCO, however arising, shall have been paid, and (ii)
the right to require ARCO to proceed against Debtor, or to pursue any other
right, recourse or remedy in ARCO's power.
Debtor agrees that, to the extent that ARCO receives any payments under
this Promissory Note, which payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or otherwise
required to be repaid to either Debtor or, as the case may be, Debtor's debtor-
in-possession, estate, trustee, receiver or any other party, for any
reason, including, without limitation, under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such payment
or repayment, the portion of Debtor's obligation hereunder which has been paid,
reduced or satisfied by the amount which ARCO was required to disgorge shall be
reinstated and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred. Further, in the event Debtor has
filed a petition for relief or an involuntary petition has been filed against
Debtor pursuant to the United States Bankruptcy Code or similar law or an
assignment for the benefit of creditors has been filed by Debtor or has been
filed against Debtor, ARCO may draw down the New Letter of Credit in the full
amount of any payments made to ARCO in repayment of this Promissory Note which
are, or could be deemed, preference payments subject to return to the bankruptcy
estate. Upon payment under the New Letter of Credit, ARCO will remit the
preference payments to the estate of Debtor.
Each individual signing this Promissory Note on behalf of Debtor represents
and warrants that he is duly authorized to execute and deliver this Promissory
Note on behalf of Debtor.
This Promissory Note shall in all respects be governed by and construed in
accordance with the internal laws of the State of California, including all
matters or construction, validity and performance. Debtor consents to the
jurisdiction of the courts of the State of California.
IN WITNESS WHEREOF, this Promissory Note is executed as of this 23 day of
March, 2000.
LLO-GAS, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxxxxx
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Its: President
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