CREDIT AGREEMENT
Exhibit 10.2
CREDIT AGREEMENT, dated as of December 13, 2018, by and between CLR
Roasters, LLC, a Florida limited liability company
(“Borrower”), Xxxxx Family Plantation Group S.A., a
company formed under the laws of Nicaragua (“SFPG”),
and Xxxx Xxxxxx (“Lender”).
RECITALS
Borrower has requested the Lender extend credit from time to time
and the Lender is willing to extend such credit to Borrower,
subject to the terms and conditions hereinafter set
forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. DEFINITIONS. As used herein, the following words and
terms shall have the following meanings:
“Agreement” shall mean this Credit Agreement, dated as
of December 13, 2018, as it may hereafter be amended, restated,
supplemented or otherwise modified from time to time.
“Borrowing Date” shall mean, with respect to any Loan,
the date on which such Loan is disbursed to Borrower.
“Business Day” shall mean (a) any day not a Saturday,
Sunday or legal holiday, on which banks in New York City are open
for business.
“Commitment” shall mean the Credit
Commitment.
“Credit Commitment” shall mean the Lender’s
obligation to make Credit Loans to Borrower in an aggregate amount
of Five Million Dollars ($5,000,000).
“Credit Commitment Period” shall mean the period from
and including the date hereof to, not including, the Credit
Commitment Termination Date or such earlier date as the Credit
Commitment shall terminate as provided herein.
“Credit Commitment Termination Date” shall mean
December 12, 2020.
“Credit Loans” shall have the meaning set forth in
Section 2.01(a).
“Credit Notes” shall have the meaning set forth in
Section 2.02.
“Default” shall mean any condition or event which upon
notice, lapse of time or both would constitute an Event of
Default.
“Eligible Credit Assets” shall mean the
Borrower’s cash, hedging accounts and its green coffee
inventory.
“Event of Default” shall have the meaning set forth in
Article VII.
“Governmental Authority” shall mean any nation or
government, any state, province, city or municipal entity or other
political subdivision thereof, and any governmental, executive,
legislative, judicial, administrative or regulatory agency,
department, authority, instrumentality, commission, board or
similar body, whether federal, state, provincial, territorial,
local or foreign.
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“Guarantee” shall mean that certain Guarantee,
dated of
December 13, 2018, executed by SFPG.
“Loan Documents” shall mean, collectively, this
Agreement, the Credit Notes and the Security Agreement, as each of
the same may hereafter be amended, restated, supplemented or
otherwise modified from time to time, as well as any and all
ancillary documents and instruments contemplated by the
forgoing.
“Market Value” of the (i) cash and hedging accounts
shall mean their actual dollar amount, and (ii) the green coffee
inventory shall mean fifty percent (50%) of the fair market value
of the Borrower’s green coffee inventory as determined in
accordance with U.S. generally accepted accounting
principles.
“Material Adverse Effect” shall mean an effect which
materially and adversely impacts or limits (a) the business,
operations, property, prospects or condition (financial or
otherwise) of Borrower or (b) the validity or enforceability of (i)
this Agreement or any of the other Loan Documents or (ii) the
rights or remedies of the Lender hereunder or
thereunder.
“Notice of Borrowing” shall mean Borrower’s
notice to Lender of a request for a Credit Loan
hereunder.
“Obligations” shall mean all obligations, liabilities
and indebtedness of Borrower to Lender, whether now existing or
hereafter created, absolute or contingent, direct or indirect, due
or not, whether created directly or acquired by assignment or
otherwise, arising under or relating to this Agreement, the Credit
Notes or any other Loan Document including, without limitation, all
obligations, liabilities and indebtedness of Borrower with respect
to the principal of and interest on the Credit Loans (including the
payment of amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the United States
Bankruptcy Code, and interest that but for the filing of a petition
in bankruptcy with respect to Borrower, would accrue on such
obligations, whether or not a claim is allowed against Borrower for
such interest in the related bankruptcy proceeding), and all fees,
costs, expenses and indemnity obligations of Borrower hereunder,
under any other Loan Document.
“Person” shall mean any natural person, corporation,
limited liability company, limited liability partnership, business
trust, joint venture, association, company, partnership or
Governmental Authority.
“Security Agreement” shall mean that certain Security
Agreement, dated of
December 13, 2018, by and between the Borrower and Lender, as it
may hereafter be amended, restated, supplemented or otherwise
modified from time to time.
ARTICLE II
CREDIT LOANS
SECTION 2.01. CREDIT LOANS.
(a)
Subject to the terms and conditions, and relying upon the
representations and warranties, set forth herein, Lender agrees to
make loans (individually a “Credit Loan” and,
collectively, the “Credit Loans”) to Borrower from time
to time during the Credit Commitment Period in the amount up to its
Credit Commitment. Outstanding borrowings under the Credit Loans to
the maximum extent of the Credit Commitment shall not at any time
exceed the aggregate Market Value of the Eligible Credit
Assets.
(b)
Borrower shall give Lender irrevocable written notice (or
telephonic notice promptly confirmed in writing) not later than
11:00 a.m. (New York, New York time), five Business Days prior to
the date of each proposed Credit Loan under this Section 2.01. Such
notice shall be irrevocable and shall specify: (i) the amount of
the proposed borrowing (which may not be less than $100,000.00) and
(ii) the proposed Borrowing Date.
(c)
The agreement of the Lender to make Credit Loans pursuant to this
Section 2.01 shall automatically terminate on the Credit Commitment
Termination Date.
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SECTION 2.02. CREDIT NOTES. The Credit Loans made by the Lender
shall each be evidenced by a secured promissory note of Borrower
(the “Credit Notes”), substantially in the form
attached hereto as Exhibit
A, appropriately completed,
duly executed and delivered on behalf of Borrower and payable to
the order of the Lender in a principal amount which when added to
the principal amount of all other Credit Loans under this Agreement
previously made by Lender to Borrower shall not exceed its Credit
Commitment. The Credit Notes will have a two-year term and bear
interest at a rate equal to eight percent (8%) per annum, payable
quarterly.
SECTION 2.03 COLLATERAL. As security for all Obligations of
Borrower to the Lender, Borrower hereby grants to the Lender a
security interest in all of Borrower’s green coffee
inventory, which security interest shall be evidenced and subject
to the terms of the Security Agreement which shall be entered into
simultaneously with the execution of this Agreement and shall be
subordinate to certain debt owed to Crestmark Bank and
pari passu
with certain holders of notes issued
by the Borrower’s parent company in 2014.
SECTION 2.04 GUARANTIES. The payment and performance of all
Obligations of Borrower to the Lender under the Credit Loans shall
be guaranteed by SFPG.
ARTICLE III
PROVISIONS RELATING TO ALL EXTENSIONS OF CREDIT;
FEES AND PAYMENTS
SECTION 3.01. USE OF PROCEEDS. The proceeds of the Credit Loans
shall be used by Borrower to purchase green coffee inventory and/or
engage in hedging transactions with respect to its green coffee
inventory and for general working capital purposes.
SECTION 3.02. PREPAYMENTS. Borrower may at any time and from time
to time prepay the then outstanding Credit Loans, in whole or in
part, without premium or penalty. Any prepayment of principal of a
Loan pursuant to this Section 3.02 shall be accompanied by accrued
interest to the date prepaid on the amount prepaid.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement and to
extend the credit herein provided for, Borrower represents and
warrants to the Lender that:
SECTION 4.01. ORGANIZATION, POWERS. Borrower (a) is a limited
liability company duly organized, validly existing and in good
standing under the laws of the state of its formation, (b) has the
power and authority to own its properties and to carry on its
business as now being conducted, (c) is duly qualified to do
business in every jurisdiction wherein the conduct of its business
or the ownership of its properties are such as to require such
qualification except those jurisdictions in which the failure to be
so qualified could not reasonably be expected to have a Material
Adverse Effect, and (d) has the power to execute, deliver and
perform each of the Loan Documents to which it is a party,
including, without limitation the Credit Notes and Security
Agreement. SFPG
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation, (b) has
the power and authority to own its properties and to carry on its
business as now being conducted, (c) is duly qualified to do
business in every jurisdiction wherein the conduct of its business
or the ownership of its properties are such as to require such
qualification except those jurisdictions in which the failure to be
so qualified could not reasonably be expected to have a Material
Adverse Effect, and (d) has the power to execute, deliver and
perform each of the Loan Documents to which it is a party,
including, without limitation the Guarantee.
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SECTION 4.02. AUTHORIZATION OF BORROWING, ENFORCEABLE OBLIGATIONS.
The execution, delivery and performance by Borrower and SFPG of
this Agreement and the other Loan Documents to which it is a party,
(a) have been duly authorized by all requisite corporate, or other
action, (b) will not violate or require any consent (other than
consents as have been made or obtained and which are in full force
and effect) under (i) any provision of law applicable to Borrower
or SFPG, any rule or regulation of any Governmental Authority, or
the Certificate of Incorporation or By-laws or Operating Agreement,
as applicable, of Borrower or SFPG, or (ii) any order of any court
or other Governmental Authority binding on Borrower or SFPG or any
indenture, agreement or other instrument to which is a party, or by
which Borrower or SFPG or any of their properties are bound, and
(c) will not be in conflict with, result in a breach of or
constitute (with due notice and/or lapse of time) a default under,
any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, of any nature whatsoever upon
any of the property or assets of Borrower or SFPG other than as
contemplated by this Agreement or the other Loan Documents. This
Agreement and each other Loan Document to which Borrower and SFPG
is a party constitutes a legal, valid and binding obligation of
Borrower and SFPG, as the case may be, enforceable against Borrower
and SFPG, in accordance with its terms.
SECTION 4.03. TITLE TO PROPERTIES. Borrower and SFPG have good
title to their properties and assets.
SECTION 4.04. LITIGATION. (a) There are no actions, suits or
proceedings (whether or not purportedly on behalf of Borrower or
SFPG) pending or, to the knowledge of Borrower or SFPG, threatened
against or affecting Borrower or SFPG at law or in equity or before
or by any Governmental Authority, which involve any of the
transactions contemplated herein or which, if adversely determined
against Borrower or SFPG, could reasonably be expected to result in
a Material Adverse Effect; and (b) neither Borrower or SFPG is in
default with respect to any judgment, writ, injunction, decree,
rule or regulation of any Governmental Authority which could
reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.05. AGREEMENTS. Neither Borrower nor SFPG is a party to
any agreement or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ, injunction,
decree or regulation which could reasonably be expected to have a
Material Adverse Effect. Neither Borrower nor SFPG is in default in
the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement or
instrument to which it is a party, which default could reasonably
be expected to have a Material Adverse Effect.
SECTION 4.06. USE OF PROCEEDS. The proceeds of each Credit Loan
hereunder shall be used for the purposes permitted under Section
3.01.
SECTION 4.07. APPROVALS. No registration with or consent or
approval of, or other action by, any Governmental Authority or any
other Person is required in connection with the execution, delivery
and performance of this Agreement by Borrower or SFPG, or with the
execution and delivery of any other Loan Documents to which it is a
party.
SECTION 4.08. NO DEFAULT. No Default or Event of Default has
occurred and is continuing.
SECTION 4.09. PERMITS AND LICENSES. Borrower and SFPG have all
permits, licenses, certifications, authorizations and approvals
required for them lawfully to own and operate their businesses
except those the failure of which to have could not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 4.10. COMPLIANCE WITH LAW. Borrower and SFPG are in
compliance, with all laws, rules, regulations, orders and decrees
which are applicable to Borrower and SFPG, as the case may be, or
to any of their respective properties
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ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01. CONDITIONS TO CREDIT LOANS. The obligation of Lender
to make Credit Loans hereunder is subject to the following
conditions precedent:
(a)
OFFICER'S CERTIFICATE. On each closing date of a Credit Loan, the
Lender shall have received a certificate dated the closing date,
executed by an Executive Officer of the Borrower confirming
compliance with the following conditions: (i) The representations
and warranties by Borrower pursuant to this Agreement and the other
Loan Documents to which each is a party shall be true and correct
in all material respects on and as of the Borrowing Date, with the
same effect as though such representations and warranties had been
made on and as of such date unless such representation is as of a
specific date, in which case, as of such date; (ii) No Default or
Event of Default shall have occurred and be continuing on the
Borrowing Date or will result after giving effect to the Loan
requested; (iii) After giving effect to any requested Credit Loan,
the aggregate Credit Loans shall not exceed the Credit Commitment;
and (iv) After giving effect to any requested Credit Loan the
outstanding amount under all Credit Loans in the aggregate shall
not exceed the then Market Value of the Eligible Credit
Assets.
(b)
NO LITIGATION. There shall exist no action, suit, investigation,
litigation or proceeding affecting Borrower or SFPG pending or, to
the knowledge of Borrower or SFPG, threatened before any court,
governmental agency or arbiter that could reasonably be expected to
be adversely determined against Borrower or SFPG and, if so
adversely determined, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse
Effect.
(c)
CONSENTS AND APPROVALS. All governmental and third party consents
and approvals necessary in connection with the transactions
contemplated by this Agreement and the other Loan Documents shall
have been obtained (without the imposition of any conditions that
are not acceptable to the Lender) and shall remain in effect, and
no law or regulation shall be applicable in the reasonable judgment
of the Lender that imposes materially adverse conditions upon the
transactions contemplated hereby.
(d)
NOTICE OF BORROWING. The Lender shall have received a Notice of
Borrowing duly executed by an Executive Officer with respect to the
requested Loan.
(e)
DOCUMENTATION. The Lender shall have received, each of the
following, duly executed, (i) the Security Agreement executed by
the Borrower and (ii) the Guarantee executed by SFPG. The Lender
shall also receive an inventory collateral report supporting the
requested Credit Loan amount.
ARTICLE VI
AFFIRMATIVE COVENANTS
Borrower and SFPG covenant and agree with Lender that so long as
the Commitment from such Lender remains in effect, or any of the
principal of or interest on the Credit Notes or any other
Obligations hereunder to such Lender shall be unpaid they
will:
SECTION 6.01. EXISTENCE, PROPERTIES. Do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate, or other legal existence, as applicable, rights and
comply in all material respects with all laws applicable to it; at
all times maintain, preserve and protect all trade names and
preserve all of its property, in each case, used or useful in and
material to the conduct of its business and keep the same in good
repair, working order and condition and from time to time make, or
cause to be made, all needful and proper repairs, renewals,
replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be properly and
advantageously conducted in the ordinary course at all
times.
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SECTION 6.02. PAYMENT OF INDEBTEDNESS AND TAXES. (a) Pay all
indebtedness and obligations for borrowed money, now existing or
hereafter arising, as and when due and payable in accordance with
customary trade practices, and (b) pay and discharge or cause to be
paid and discharged promptly all taxes, assessments and government
charges or levies imposed upon it or upon its income and profits,
or upon any of its property, real, personal or mixed, or upon any
part thereof, before the same shall become in default, as well as
all lawful claims for labor, materials and supplies or otherwise
which, if unpaid, might become a lien or charge upon such
properties or any part thereof; provided, however, that neither
Borrower nor SFPG shall be required to pay and discharge or cause
to be paid and discharged any such tax, assessment, charge, levy or
claim so long as the validity thereof shall be contested in good
faith by appropriate proceedings, and it shall have set aside on
its books adequate reserves determined in accordance with generally
accepted accounting principles with respect to any such tax,
assessment, charge, levy or claim so contested; further, provided
that, subject to the foregoing proviso, Borrower and SFPG will pay
or cause to be paid all such taxes, assessments, charges, levies or
claims upon the commencement of proceedings to foreclose any lien
which has attached as security therefor.
SECTION 6.03. FINANCIAL STATEMENTS, REPORTS, ETC. Furnish to the
Lender as soon as available, but in any event not later than one
hundred and twenty (120) days after the end of each fiscal year, a
copy of Borrower’s unaudited financial statements for such
fiscal year.
SECTION 6.04. BOOKS AND RECORDS; ACCESS TO PREMISES. Keep adequate
records and proper books of record and account in which complete
entries will be made in a manner to enable the preparation of
financial statements in accordance with generally accepted
accounting principles, and which shall reflect all financial
transactions of Borrower and SFPG, as the case may be.
SECTION 6.05. NOTICE OF ADVERSE CHANGE. Promptly notify the Lender
in writing of (a) any change in the business or the operations of
Borrower or SFPG which could reasonably be expected to have a
Material Adverse Effect, including, but not limited to, a decrease
of the Market Value of the Eligible Credit Assets below the Credit
Commitment, and (b) any information which indicates that any
financial statements which are furnished to the Lender pursuant to
this Agreement, fail, in any material respect, to present fairly,
as of the date thereof and for the period covered thereby, the
financial condition and results of operations purported to be
presented therein, disclosing the nature thereof.
SECTION 6.06. NOTICE OF DEFAULT. Promptly notify the Lender of any
Default or Event of Default which shall have occurred, which notice
shall include a written statement as to such occurrence, specifying
the nature thereof and the action (if any) which is proposed to be
taken with respect thereto.
SECTION 6.07. NOTICE OF LITIGATION. Promptly notify the Lender of
any action, suit or proceeding at law or in equity or by or before
any governmental instrumentality or other agency which, if
adversely determined against Borrower or SFPG on the basis of the
allegations and information set forth in the complaint or other
notice of such action, suit or proceeding, or in the amendments
thereof, if any, could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.08. NOTICE OF DEFAULT IN OTHER AGREEMENTS. Promptly
notify the Lender of any default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which Borrower or SFPG
is a party which default could reasonably be expected to have a
Material Adverse Effect.
SECTION 6.11. COMPLIANCE WITH APPLICABLE LAWS. Comply with the
requirements of all applicable laws, rules, regulations and orders
of any Governmental Authority, the breach of which could reasonably
be expected to have a Material Adverse Effect.
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ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT. In the case of the happening of
any of the following events (each an “Event of
Default”):
(a)
failure to pay the principal of, or interest on, any Loan, as and
when due and payable;
(b)
any representation or warranty made or deemed made in this
Agreement or any other Loan Document shall prove to be false or
misleading in any material respect when made or given or when
deemed made or given;
(c)
any report, certificate, financial statement or other instrument
furnished in connection with this Agreement or any other Loan
Document or the borrowings hereunder, shall prove to be false or
misleading in any material respect when made or given or when
deemed made or given;
(d)
Borrower or SFPG shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United
States Code or any other federal or state bankruptcy, insolvency or
similar law; (ii) consent to the institution of, or fail to
controvert in a timely and appropriate manner, any such proceeding
or the filing of any such petition; (iii) apply for or consent to
the employment of a receiver, trustee, custodian, sequestrator or
similar official for Borrower or SFPG or for a substantial part of
its property, (iv) file an answer admitting the material
allegations of a petition filed against it in such proceeding; (v)
make a general assignment for the benefit of creditors; (vi) take
corporate action for the purpose of effecting any of the foregoing;
or (vii) become unable or admit in writing its inability or fail
generally to pay its debts as they become due; or
(e)
an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of Borrower or SFPG or of a
substantial part of their respective property, under Title 11 of
the United States Code or any other federal or state bankruptcy
insolvency or similar law; (ii) the appointment of a receiver,
trustee, custodian, sequestrator or similar official for Borrower
or SFPG or for a substantial part of their property; or (iii) the
winding-up or liquidation of Borrower or SFPG and such proceeding
or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall continue
unstayed and in effect for 60 days.
then, at any time thereafter during the continuance of any such
event, the Lender may, in its sole discretion, by written or
telephonic notice to Borrower, take either or both of the following
actions, at the same or different times, (i) terminate the
Commitment and (ii) declare (a) its Credit Notes, both as to
principal and interest, and (b) all other Obligations, to be
forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived,
anything contained herein or in the Credit Note to the contrary
notwithstanding; provided, however, that if an event specified in
Section 7.01(d) or (e) shall have occurred, the Commitment shall
automatically terminate and interest, principal and amounts
referred to in the preceding clauses (i) and (ii) shall be
immediately due and payable without presentment, demand, protest,
or other notice of any kind, all of which are expressly waived,
anything contained herein or in the Credit Notes to the contrary
notwithstanding.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. NOTICES. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing
(including telecopy and email), and unless otherwise expressly
provided herein, shall be conclusively deemed to have been received
by a party hereto and to be effective on the day on which delivered
by hand to such party or one Business Day after being sent by
overnight mail to the address set forth below, or, in the case of
telecopy or email notice, when received, or if sent by registered
or certified mail, three (3) Business Days after the day on which
mailed in the United States, addressed to such party at such
address set forth above:
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SECTION 8.02. EFFECTIVENESS; SURVIVAL. This Agreement shall become
effective on the date on which all parties hereto shall have signed
a counterpart copy hereof and shall have delivered the same to the
Lender. All representations and warranties made herein and in the
other Loan Documents and in the certificates delivered pursuant
hereto or thereto shall survive the making by the Lender of the
Credit Loans as herein contemplated and the execution and delivery
to the Lender of the Credit Notes evidencing the Credit Loans and
shall continue in full force and effect so long as the Obligations
hereunder are outstanding and unpaid and the Commitments are in
effect. The obligations of Borrower pursuant to Section 8.03 shall
survive termination of this Agreement and payment of the
Obligations.
SECTION 8.03. SUCCESSORS AND ASSIGNS; PARTICIPATIONS. This
Agreement shall be binding upon and inure to the benefit of
Borrower, SFPG, the Lender, all future holders of the Credit Notes
and their respective successors and permitted assigns. Neither
party may assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of the other
party.
SECTION 8.04. NO WAIVER; CUMULATIVE REMEDIES. Neither any failure
nor any delay on the part of the Lender in exercising any right,
power or privilege hereunder or under any Credit Note or any other
Loan Document shall operate as a waiver thereof, nor shall a single
or partial exercise thereof preclude any other or further exercise
of any other right, power or privilege. The rights, remedies,
powers and privileges herein provided or provided in the other Loan
Documents are cumulative and not exclusive of any rights, remedies
powers and privileges provided by law.
SECTION 8.05. APPLICABLE LAW. THIS AGREEMENT AND THE CREDIT NOTES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OR
CHOICE OF LAW. Any
action or proceeding seeking to enforce any provision of, or based
on any right arising out of, any of this Agreement must be brought
against any of the parties in the courts of the State of Delaware,
or, if it has or can acquire jurisdiction, in the United States
District Court for District of Delaware, and each of the parties
consents to the jurisdiction of those courts (and of the
appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Nothing in this Section
8.05, however, affects the right of any party to serve legal
process in any other manner permitted by law.
SECTION
8.06. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement, any Credit Note or any other Loan
Document should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be
affected or impaired thereby.
SECTION 8.07. HEADINGS. Section headings used herein are for
convenience of reference only and are not to affect the
construction of or be taken into consideration in interpreting this
Agreement.
SECTION 8.08. CONSTRUCTION. This Agreement is the result of
negotiations between, and has been reviewed by, each of Borrower,
the Lender and their respective counsel. Accordingly, this
Agreement shall be deemed to be the product of each party hereto,
and no ambiguity shall be construed in favor of or against Borrower
or the Lender.
SECTION 8.09. COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original,
but all of which, taken together, shall constitute one and the same
instrument. Conveyance of an electronic copy of the signed document
will constitute execution and delivery.
SECTION 8.10. INDEPENDENT LEGAL COUNSEL. Ascendant Alternative
Strategies, LLC (the “Placement Agent”) has retained
its own legal counsel in connection with the transactions
contemplated by the Loan Documents (the “Placement
Agent’s Counsel”). The Placement Agent’s counsel
has not and will not represent the Lender in connection with the
Lender’s investment in the Company as contemplated under the
terms of this Agreement and the Loan Documents. The Lender
acknowledges that (i) no attorney-client relationship exists
between the Lender and Placement Agent’s counsel and (ii) the
Lender should seek his own advisors (including, without limitation,
legal advisors) for advice and due diligence with respect to an
investment in the Company, including with respect to a review of
the Loan Documents.
[Signature
Page Follows]
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IN WITNESS WHEREOF, Borrower, SFPG and Lender have caused this
Agreement to be duly executed by their duly authorized officers, as
of the day and year first above written.
CLR ROASTERS, LLC
By: /s/ Xxxx
Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Manager
XXXXX FAMILY PLANTATION GROUP S.A.
By: /s/ Xxxx
Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Managing Director
/s/ Xxxx
Xxxxxx
Xxxx
Xxxxxx
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EXHIBIT A
CREDIT NOTE
$________
Issue
Date: _________
FOR VALUE RECEIVED, CLR ROASTERS, LLC, a Florida limited liability
company (the “Company”), with its principal place of
business at 0000-0000 XX 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000, promises
to pay to the order of Xxxx Xxxxxx. (“Payee”), on or before the date that is two
(2) years after the Issue Date (the “Maturity Date”),
the principal amount of ___________ Dollars ($_____), together with
interest on the principal amount hereof at the rate of eight
percent (8%) per annum. This Note is a “Credit Note”
referred to in the Credit Agreement dated as of December 13, 2018,
by and between the Company, Silas Family Plantation Group
(“SFPG”) and Payee (as the same may be amended,
modified or supplemented from time to time, the “Credit
Agreement”) and is issued pursuant to and entitled to the
benefits of the Credit Agreement to which reference is hereby made
for a more complete statement of the terms and conditions under
which the Credit Loans evidenced hereby were made and are to be
repaid. Capitalized terms used herein without definition shall have
the meanings set forth in the Credit Agreement.
1. Pursuant to that
certain Security Agreement dated as of December 13, 2018 by and
among the Company, SFPG and Payee, this Note and all obligations
hereunder, and the other Credit Notes issued or issuable under of
the Credit Agreement and all Obligations thereunder, respectively,
are secured by a security interest in certain of the assets of the
Company noted in the Security Agreement and guaranteed by SFPG
pursuant to the terms of the Guarantee.
2. Upon the occurrence
of an Event of Default, the unpaid balance of the principal amount
of this Note together with all accrued but unpaid interest thereon,
may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the
Credit Agreement and shall bear interest from the due date until
such amounts are paid at the rate of ten percent (10%) per annum;
provided,
however, that in
the event such interest rate would violate any applicable usury
law, the default rate shall be the highest lawful interest rate
permitted under such usury law.
3. Payments on both
principal and interest are to be made in lawful money of the United
States of America unless Payee agrees to another form of payment.
Presentment, demand, protest or notice of any kind are hereby
waived by the Company. The Company may not set off against any
amounts due to Payee hereunder any claims against Payee or other
amounts owed by Payee to the Company.
4. All rights and
remedies of Payee under this Note are cumulative and in addition to
all other rights and remedies available at law or in equity, and
all such rights and remedies may be exercised singly, successively
and/or concurrently. Failure to exercise any right or remedy shall
not be deemed a waiver of such right or remedy.
5. The Company agrees
to pay all reasonable costs of collection, including attorneys'
fees which may be incurred in the collection of this Note or any
portion thereof and, in case an action is instituted for such
purposes, the amount of all attorneys' fees shall be such amount as
the court shall adjudge reasonable.
6. This Note is made
and delivered in, and shall be governed, construed and enforced
under the laws of the State of Delaware.
7. This Note shall be
subject to prepayment, at the option of the Company, in whole or in
part, at any time and from time to time, without premium or
penalty.
8. This Note or any
benefits or obligations hereunder may not be assigned or
transferred by the Company.
9. Ascendant Alternative
Strategies, LLC (the “Placement Agent”) has retained
its own legal counsel in connection with the transactions
contemplated by the Loan Documents (the “Placement
Agent’s counsel”). The Placement Agent’s counsel
has not and will not represent the Payee in connection with the
Payee’s investment in the Company as contemplated under the
terms of this Agreement and the Loan Documents. The Payee
acknowledges that (i) no attorney-client relationship exists
between the Payee and Placement Agent’s counsel and (ii) the
Payee should seek his own advisors (including, without limitation,
legal advisors) for advice and due diligence with respect to an
investment in the Company, including with respect to a review of
the Loan Documents.
CLR
ROASTERS, LLC
By:
________________________________
Name:
Title:
A-1
