RESPITE AGREEMENT AND
AMENDMENT OF LOAN AGREEMENT
This Respite Agreement and Amendment of Loan Agreement, dated
effective as of
February 18, 2009, (this "Respite Agreement") is entered into by
and among Aurelio Resource Corporation, a Nevada corporation (the
"Lender" or "ARC"), AIEX Corporation, a Colorado corporation
("AIEX"), and Telifonda (Cayman) Ltd, a Cayman Island corporation,
(the "Company" or "Telifonda").
RECITALS
A. Lender and the Company have entered into a Stock Purchase
Agreement dated September 30, 2008, as amended on November 17, 2008
(the "Stock Purchase Agreement"). In connection with the Stock
Purchase Agreement, Telifonda agreed to provide to the Lender (or
its subsidiary, AIEC, Inc.) a loan in the principal amount of
US$1,450,000 (the "AIEX Loan Amount"), repayable in accordance with
the terms of a Loan Agreement dated February 19, 2008 between
Telifonda and AIEX, (the "AIEX Loan Agreement"), as that agreement
is further described in Section 2(b)(ii) of the Stock Purchase
Agreement, as amended.
B. Simultaneous with the closing under the Stock Purchase
Agreement, Company agreed to purchase a Net Smelter Royalty from
Minera Milenium S.A. de C.V, a Mexican corporation ("Minera") and a
subsidiary of Lender, (the "Minera NSR"), for a purchase price of
US$50,000 (the "Minera Amount"), all pursuant to a Net Smelter
Return Royalty Agreement (as that agreement has been amended)
between Minera and the Company (the "Minera NSR Royalty
Agreement.
C. Also simultaneous with the closing under the Stock Purchase
Agreement, in accordance with Section 2(e) of the Stock Purchase
Agreement as amended, the company agreed to reimburse certain
expenditures made by the Lender which the parties to this Respite
Agreement have now agreed equals US$265,522 (the "Reimbursement
Amount").
D. The parties hereto have agreed that the above payments to be
made by Company to ARC or its designee shall be made pursuant to
this Respite Agreement, as the terms of those payments may be
modified by the terms hereof..
E. All capitalized terms used in this Respite Agreement and not
otherwise defined have the meanings given in the Stock Purchase
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of (i) a reduction in the
interest rate under the AIEX Loan Agreement as et forth in Section
1(b) of this Respite Agreement, (ii) an agreement by the parties
hereto to delay the obligation of Lender to deliver the Minera NSR
Agreement until full payment and satisfaction by Company of its
obligations under this Loan Agreement, and (iii) of the
representations, warranties, agreements and conditions set forth
below, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Respite of Payment; Interest and Payment.
(a) Respite of Payment. In reliance upon the representations,
warranties and covenants of the parties set forth herein, on the
date hereof, Lender grants to the Company a respite of payment of
the AIEX Loan Amount, the Minera Amount and the Reimbursement
amount in the aggregate amount of US$1,765,522 (the "Respite
Amount") until the dates set forth in Section 1(e) of this Respite
Agreement, which Respite Amount shall be evidenced by the respite
note (the "Respite Note"), in the form annexed hereto as Exhibit A,
delivered by the Company to Lender.
(b) Amendment of AIEX Loan Agreement. Section 1(c) of the AIEX
Loan Agreement is hereby amended by deleting such Section 1(c) in
its entirety and inserting the following in place thereof:
Interest. Interest on the principal
balance of the Loan Note shall be payable at the rate of (i) One
Year LIBOR plus 3% per annum, commencing on the Commercial
Production Date (as such term is defined below), (ii) One Year
LIBOR plus 9% per annum commencing on the occurrence of, and during
the continuance of, any Default described in Section 2 of the Loan
Note.
(c) Terms of the Respite Note. The terms and conditions of the
Respite Note are set forth in Exhibit A attached hereto.
Capitalized terms not otherwise defined herein shall have the
meaning set forth in Exhibit A attached hereto
(d) Interest. Interest on the principal balance of the Respite
Note shall be payable at the rate of (i) One Year LIBOR per annum,
commencing on the date hereof, (ii) One Year LIBOR plus 9% per
annum commencing on the occurrence of, and during the continuance
of, any Default described in Section 2 of the Respite Note.
(e) Payment of Amounts Outstanding Under the Respite Note. The
Reimbursement Amount plus all accrued and unpaid interest thereon
shall be due and payable no later than May 31, 2009. The AIEX Loan
Amount and the Minera Amount plus all accrued and unpaid interest
thereon and the balance of any other unpaid amounts payable under
the Respite Note, shall be due and payable no later than December
31, 2009. Lender understands and acknowledges that the payment of
the AIEX Loan Amount is only a loan of the Company to AIEX in
accordance with the AIEX Loan Agreement and will be subject to
repayment by AIEX as agreed in such AIEX Loan Agreement. The
Company shall have the right to offset from the Respite Amount any
amounts owed to it by the Lender at the time of its payment
obligations.
(e) Rights upon Default. If the Company fails to make payments
owed under Section 1(d) of this Respite Agreement or the Respite
Note, then the Lender or its designee shall, in addition to all
rights and other remedies it may have under the Respite Note and
elsewhere in this Respite Agreement, have no obligation to deliver
the Minera NSR Agreement to the Company, and the Company agrees to
waive any rights it may have to pursue collection of any royalties
pursuant thereto. The election by the Lender or its designee not to
deliver said Minera NSR Agreement to the Company shall in no manner
be deemed as a waiver of its rights to receive the Minera Amount or
to request enforcement of the AIEX Loan Agreement, and shall not be
deemed as an offset to any damages it may be entitled to under said
agreements.
2. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Lender that the statements
contained in the following paragraphs of this Section 2 are all
true and correct in all material respects as of the time of the
execution and issuance of the Respite Note, and shall continue to
be true and correct in all material respects until payment and
satisfaction in full of Respite Amount, except as contemplated by
the Stock Purchase Agreement:
(a) Organization and Standing: Articles and Bylaws. The Company
is a corporation duly organized, validly existing and in good
standing under the laws of the Cayman Islands, and has all
requisite corporate power and authority to carry on its business as
now conducted and proposed to be conducted.
(b) Corporate Power. The Company has all requisite corporate
power to enter into, execute and deliver this Respite Agreement and
the Respite Note. This Respite Agreement and the Respite Note are
valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except as the same may be
limited by bankruptcy, insolvency, moratorium, and other laws of
general application affecting the enforcement of creditors'
rights.
(c) Authorization. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
execution and delivery of this Respite Agreement and the Respite
Note and the performance of the Company's obligations hereunder
have been taken.
(d) Government Consent, Etc. No consent, approval, order or
authorization of, or designation, registration, declaration or
filing with, any federal, state, local or provincial or other
governmental authority on the part of the Company is required in
connection with the valid execution and delivery of this Respite
Agreement and the Respite Note.
(e) Litigation. To the Knowledge of the Company, (i) there is no
action, suit, proceeding or arbitration ("Action"), claim or
investigation currently pending or threatened, against the Company,
its activities, properties or assets, or against any officer,
director or employee of the Company in connection with such
officer's, director's or employee's relationship with or actions
taken on behalf of the Company, (ii) the Company is not a party to
or subject to the provisions of any material order, writ,
injunction, judgment or decree of any court or governmental agency
or instrumentality, and (iii) there is no Action or claim by the
Company currently pending or which the Company intends to
initiate.
3. Representations and Warranties by the Lender. The Lender
represents and warrants to the Company as of the time of the
Company's execution and issuance of the Respite Note and until such
time as Loan is paid and satisfied in full, as follows:
(a) The Respite Note will be acquired for the Lender's own
account, for investment and not with a view to, or for resale in
connection with, any distribution or public offering thereof within
the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
(b) The Lender understands that the Respite Note has not been
registered under the Securities Act by reason of its issuance in a
transaction exempt from the registration and prospectus delivery
requirements of the Securities Act pursuant to Section 4(2)
thereof, that the Company has no present intention of registering
the Respite Note, that the Lender may be required to hold the
Respite Note indefinitely, and that Lender must therefore bear the
economic risk of such investment indefinitely, unless a subsequent
disposition thereof is registered under the Securities Act or is
exempt from registration.
(c) The Lender (i) is an "Accredited Investor" as that term is
defined in Rule 501 of Regulation D promulgated under the
Securities Act or has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of the prospective investment in the Respite Note; (ii) has
the ability to bear the economic risks of the loans evidenced
hereby and by the Respite Note, including a complete loss of
principal amounts payable pursuant to the Respite Note; and (iii)
has not been offered the Respite Note by any form of advertisement,
article, notice or other communication published in any newspaper,
magazine, or similar media or broadcast over television or radio,
or any seminar or meeting whose attendees have been invited by any
such media.
(d) The Lender has the full right, power and authority to enter
into and perform its obligations under this Respite Agreement, and
this Respite Agreement constitutes a valid and binding obligation
of the Lender enforceable in accordance with its terms except as
limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, usury or other laws of general
application relating to or a
