EXHIBIT 10.1
LOAN AGREEMENT
This Loan Agreement made this 22nd day of December 2003, by and between
XRG, INC., a Delaware Corporation, and OWNERSHIP, having an address at 0000
Xxxxxxx Xx., Xxxxx 000, Xxxxx, XX 00000 (collectively referred to as the
"Company"), and The Fortius Foundation Fund, L.P., having an address at 000
Xxxxxxx Xxxxxx - 21st Floor, New York, New York 10022, (the "Lender").
W I T N E S S E T H:
WHEREAS, the Company is a business described as a Truckload Carrier
Consolidator and is the owner of fixtures, equipment, goods, inventory and
products located at the business address.
WHEREAS, Lender is herewith extending a loan to Company in the
principal amount of Three Hundred Fifty Thousand ($350,000.00) Dollars which
loan is evidenced by the execution and delivery to Lender of a Promissory Note,
of even date herewith (the `Promissory Note") and a Guaranty (the "Guaranty"),
of even date herewith, guaranteeing the obligations of the Company to the Lender
under this Loan Agreement in which Lender agrees to make a term loan in the
amount of Three Hundred Fifty Thousand ($350,000.00) Dollars to the Company.
WHEREAS, the Lender's obligation to make the loan is subject to the
condition, inter alia, that repayment thereof also be secured by a lien on
Company's equipment, property and fixtures pursuant to a UCC-1 financing
statement of even date.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and as security for the payment to Lender of any sums which may
become due under the Promissory Note and Guaranty with interest, as therein
provided for, and all other indebtedness arising under the Promissory Note and
Guaranty and this Loan Agreement, according to their respective terms and
conditions and for performance of the agreements, conditions, covenants,
provisions and stipulations contained herein and therein, the Company hereby
further grants and conveys to Lender:
1. The Loan is a bridge financing with a term of three (3) months
renewable for three (3) additional periods commencing with the end of the first
term. The loan will carry an interest rate of 12% per annum payable on a
pro-rate basis at the end of each term. Said interest is a condition of renewal
of the loan term.
2. Company further represents, warrants, covenants and agrees with the
Lender as follows:
(a) Payment of indebtedness. Company shall pay the
indebtedness at the time and place and in the manner as specified in the
Promissory Note and Guaranty and shall perform all of the obligations as
specified therein. Said payment shall be made from the first of either an equity
financing as committed by Equitex Venture Group through its fund, the Fortius
Income and Growth Fund; the refinancing of the company debt position; the
investment of any outside investor in excess of $500,000; or, the full term of
the loan which shall be no greater than 90 days from the execution of this
agreement.
(b) Compliance. Company shall promptly comply with, or cause
to be complied with, and conform to all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements of every Governmental authority.
(c ) Company, as of this date, shall not by act or omission
impair the integrity of any part of the business which could result in a
violation or diminish the value of the Company and its assets.
(d) Company shall, for so long as the indebtedness remains
unpaid, keep the Premises insured against loss or damage by fire, lightening or
public liability, demolition and by such other further and additional risks and
hazards as now are or hereafter may be covered by standard coverage and "all
risk" endorsements.
(e) Company shall pay when due and payable and before interest
and penalties are due thereon, without any deduction, defalcation or abatement,
all taxes and all other charges or claims which may be properly assessed, levied
or filed against the Company.
3. Required Notices. Company, during the pendency of its indebtedness
to Lender, shall notify Lender promptly of the occurrence of any of the
following:
(a) fire or other casualty.
(b) substantial financial change in the business of the
Company.
(c) commencement of any litigation affecting the assets of the
Company.
4. Default; Remedies.
(a) It shall constitute an Event of Default under this Loan
Agreement if any of the following shall occur:
(i) default in payment pursuant to the terms of the
Promissory Note.
(ii) default in payment pursuant to the Guaranty.
(iii) default in the performance of any other covenant,
condition, representation or
warranty of this Loan Agreement for a period of thirty (30) days or more.
(b) Upon the occurrence of any Event of Default, as herein
defined, or a material breach of a warranty or representation under the
Promissory Note or Guaranty, all sums secured by this Loan Agreement shall
become immediately due and payable, at the option of Lender, without notice or
demand, and to the extent permitted by law:
(i) Lender may commence an appropriate action to recover
any sums required to be paid by the Company under the terms of this Loan
Agreement, the Promissory Note or the Guaranty.
(ii) Lender may proceed against the personal property,
fixtures, equipment, goods and inventory of the Company in accordance with the
terms of the UCC-1 Financing Statement and provisions of the Uniform Commercial
Code.
5. Rights and Remedies Cumulative. The rights and remedies of Lender as
provided in this Loan Agreement and ancillary documents shall be cumulative and
concurrent; may be pursued separately, successively or together against the
Company or its assets at the sole direction of Lender. The failure to exercise
any such right or remedy shall in no event be construed as a waiver or release
thereof.
6. Counsel Fees. If Lender becomes a party to any necessary suit or
proceeding related to this Loan Agreement, the Promissory Note, the Guaranty or
the UCC-1 Financing Statement, then reasonable costs, expenses and counsel fees
shall be borne by the Company and shall be deemed to be part of the indebtedness
herein.
7. Further Assurances. Company will execute and deliver such further
instruments and perform such further acts as may be reasonably requested by
Lender from time to time to confirm the provisions of this Loan Agreement.
8. Communications and Notices. All communications and notices required
under this Loan Agreement shall be in writing and shall be sent by personal
service or certified or registered mail, postage prepaid, return receipt
requested, addressed to the parties at the addresses listed above, or to such
other addresses as may be specified by like notice to the other party.
Communications and notices hereunder shall be deemed to have been given on the
date it is delivered, in the case of personal service, or on the date it is
received, in the case of certified or registered mail.
9. Governing Law. All parties herein intend that the validity and
construction of this Loan Agreement with ancillary documents incorporated herein
be governed by the laws of the State of New York.
10. Captions. The captions preceding the text of the paragraphs or
subparagraphs of this Mortgage are inserted only for convenience of reference
and shall not constitute a part of this Loan Agreement, nor shall they in any
way affect its meaning, construction or effect.
IN WITNESS WHEREOF, this Loan Agreement has been duly executed by the
parties herein on the day and year first above written.
XRG, INC.
In presence of:
By:_______________________
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Xxxxxx Xxxxxxxxx
Managing Director
For and on behalf of
The Fortius Foundation Fund, L.P.
Lender
