Attached files
| file | filename |
|---|---|
| 10-K/A - 10KA 1 12.18.09 - PHOENIX ENERGY RESOURCE CORP | form10ka1.htm |
| EX-3.1 - PHOENIX ENERGY RESOURCE CORP | ex3_1.htm |
| EX-10.1 - PHOENIX ENERGY RESOURCE CORP | ex10_1.htm |
| EX-32.1 - PHOENIX ENERGY RESOURCE CORP | ex32_1.htm |
| EX-31.1 - PHOENIX ENERGY RESOURCE CORP | ex31_1.htm |
| EX-10.9 - PHOENIX ENERGY RESOURCE CORP | ex10_9.htm |
| EX-10.8 - PHOENIX ENERGY RESOURCE CORP | ex10_8.htm |
LOAN
AGREEMENT
THIS LOAN
AGREEMENT, dated May 21, 2008, made in Zürich, Switzerland by and
between:
Party
A
Seymore
Investments Limited, a limited liability company registered in the British
Virgin Islands, with its registered address at Sea Meadow House, Blackburn
Highway, Road Town, Tortola BVI, Legal Representative: Nick Vippach for and on
behalf of Beresford Trustees Limited (Director)
Party
B
Exotacar
Inc., a publicly quoted company incorporated in Nevada located at 1001 Bayhill
Drive, 2nd Floor Suite 200, San Bruno CA 94066. Legal representative: René
Soullier (President)
RECITALS
WHEREAS,
Party B desires to receive funding for business development and operational
costs; and Party A desires to provide Party B with a loan. Party A
and Party B enter into this Loan Agreement (this "Agreement") on the principle
of equality and mutual benefit.
ARTICLE
I
AMOUNT
AND TERM OF LOAN
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1.1.
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Party
A agrees, subject to the terms and conditions of this Agreement, to extend
a loan to Party B (the "Loan"). The amount of the Loan shall be US$
150,000. The interest rate agreed upon shall be 10% per year
payable at the end of each twelve month period from the date of
execution.
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1.2.
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The
term of the Loan shall be three years, commencing from the execution date,
that is, from May 21, 2008 until May 20,
2011.
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1.3.
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Party
B shall repay the Loan in full at the latest on the expiration of the term
thereof. Repayment shall be in form of either cash or stock as
per agreement between Party A and Party B. If the Loan is
repaid in stock, Party A shall be given a 15% discount to the market price
of Party B common stock based on a five day rolling average price of Party
B common stock immediately preceding repayment of the
Loan.
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ARTICLE
II
METHOD OF
BORROWING AND USE OF LOAN PROCEEDS
Within 10
business days after execution of this Agreement, Party A shall make available to
Party B the full amount of the Loan to the following account designated by Party
B:
Account
Name: Exotacar
Inc.
Account
number: 148
000-925-1
Address:
RBC Centura Bank
17010 Kenton
Drive
Cornelius, NC 28031
Routing: 053100850
Swift
Code: CNTAUS33
Party B
shall not use such Loan for any purposes in violation of US laws and
regulations, otherwise Party A may at any time require Party B to repay the Loan
immediately and in full.
ARTICLE
III
PARTY B's
REPRESENTATIONS AND WARRANTIES
Party B
hereby represents and warrants to Party A that:
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3.1.
|
Party
B is a publicly quoted corporation, incorporated in Nevada, USA, has all
the necessary rights, power and capability to enter into and perform all
the duties and obligations hereunder, and that this Agreement shall be
binding upon Party B after the execution
hereof.
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3.2.
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Party
B will resolve appropriately any issues not covered hereunder in
conjunction with Party A in accordance with relevant US laws and policies,
and agrees to deal fairly and in good faith with Party
A.
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ARTICLE
IV
PARTY A's
REPRESENTATIONS AND WARRANTIES
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4.1.
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Party
A is a limited liability company established and existing under the laws
of the British Virgin Islands, has all the necessary rights, power and
capability to enter into and perform all the duties and obligations
hereunder, and that this Agreement shall be binding upon Party A after the
execution hereof.
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4.2.
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Party
A will resolve appropriately any issues not covered hereunder in
conjunction with Party B in accordance with relevant US laws and policies,
and agrees to deal fairly and in good faith with Party
B.
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ARTICLE
V
CONFIDENTIALITY
Without
written consent of the other party, neither Party shall disclose to any third
parties this Agreement or any information disclosed by any Party hereto during
the performance of this Agreement, except such disclose is necessary for
compliance with relevant laws and regulations, court rules and/or governmental
or regulatory or stock exchange rules; unless such information becomes public
not as a result of violation of this Article such as in the required disclosures
in a filing on a Form 8K with the Securities and Exchange
Commission.
ARTICLE
VI
WAIVER
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6.1.
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No
waiver of any breach hereof or failure of any Party in exercising any
power or right hereunder shall operate as a waiver of other breach or
further breach hereof, nor waiver of all the power or right
hereunder.
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6.2.
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Any
unreasonable delay of any Party in exercising any power or right hereunder
shall operate as a waiver thereof.
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ARTICLE
VII
SEVERABILITY
If any
provision of this Agreement shall be held invalid, illegal or unenforceable in
any respect under any US laws and regulations, such invalidity, illegality or
unenforceability shall not affect any other provision hereof.
ARTICLE
VIII
ENTIRE
AGREEMENT
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6.1.
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This
Agreement contains the entire agreement and understanding between the
Parties with respect to the Loan.
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6.2.
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This
Agreement shall supersede all prior agreements, understandings, letter of
intent, documents or communications between both Parties or their
representatives and advisors relating to the Loan. Neither
Party shall bring forward any claims against the other Party by reference
to such superseded agreements, understandings, letter of intent, documents
or communications.
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6.3.
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No
amendment to this Agreement or any provisions hereof shall be effective
unless it shall be agreed in writing by both
Parties.
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ARTICLE
IX
TAXES,
FEES AND EXPENSES
Any and
all taxes, fees and expenses that are payable as a result of the Loan shall be
solely borne by the Party exercising its rights hereunder, unless either Party A
or Party B has been expressly required to pay the same under applicable law or
this Agreement.
ARTICLE
X
BREACH
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10.1.
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Failure
by any of Party A or Party B in performing its obligations hereunder shall
constitute a breach of this
Agreement.
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10.2.
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If
this Agreement or any portion hereof can not be performed due to
negligence of any Party hereto, such Party shall be held liable for
breach, and the other Party shall have the right to terminate this
Agreement. If both Parties are negligent, each of Party A and Party B
shall bear the responsibilities to the extent of loss and damage
comparative to their negligence.
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ARTICLE
XI
GOVERNING
LAW
The
formulation, validity, interpretation, performance, amendment and termination of
this Agreement and resolution of dispute shall be governed by the relevant laws
of the United States of America and the State of Nevada.
ARTICLE
XII
DISPUTE
RESOLUTION
Any
dispute arising out of or in connection with this Agreement should be settled by
friendly discussion and, failing such a settlement within 30 days upon notice by
any Party hereto asking for negotiations, both Parties agree that such dispute
shall be referred to and finally resolved by arbitration in San Francisco at the
American Arbitration Association’s Regional Center pursuant to the then
effective arbitration rules and regulations thereof. The arbitration award shall
be final and binding on both Parties. Any appeal of an arbitration
award shall take place in Nevada courts. Any and all fees and
expenses that are payable as a result of the arbitration shall be evenly split
between Party A and Party B, unless either Party A or Party B has been expressly
required to pay the same under applicable law or this Agreement.
ARTICLE
XIII
COUNTERPARTS
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement.
SIGNATURE
PAGE
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
Party A:
Seymore Investments Limited
Authorized
Representative:
(Signature) _____________________________
Party B:
Exotacar Inc.
Authorized
Representative:
(Signature) _____________________________