LOAN AGREEMENT
Exhibit 10.2
THIS LOAN
AGREEMENT (the “Agreement”) is entered into as of the 30th day
of September, 2009, by and between XXXXXXXX X. XXXXX, as Trustee of
the Pak-It Members’ Trust, 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
3375 (the “Lender”) and 310 Holdings, Inc.(the “Borrower”), and is
made in reference to the following facts:
(A) Borrower
has acquired one hundred (100 %_ percent of the membership interests of Pak-It,
LLC from the beneficiaries of Lender and has executed and delivered promissory
notes in partial consideration thereof.
(B) On
or about the date of execution of this Agreement by the parties hereto, the
Lender, on behalf of the Members and pursuant to a Trust Indenture, has agreed
to accept a Note from Borrower in the amount of $1,200,000.00 (the “Note”), and
a Liability Note ( the “Liability Note”) in the amount of $2,665,000.00,
collectively called the “Notes”.
(C) In
connection with the Loan, the Lender, the Borrower, and others have executed on
or about the date hereof numerous loan documents evidencing and securing the
Loan, including, without limitation, the following:
Note, Liability Note, Security
Agreements, Pledge Agreement, and have authorized the filing of financing
statements, and the other documents which will be sometimes collectively
referred to below as the “Instruments of Security”. The Notes and
Instruments of Security will be sometimes collectively referred to below as the
“Loan Documents”.
(D) The
Lender has required the execution of this Agreement as a condition to it making
the Loan to the Borrower, and the Borrower is agreeable to the
same.
NOW
THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein and other valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties covenant and agree as
follows:
ARTICLE I
- INTRODUCTORY PROVISIONS
1.1 Recitals. The
statements contained in the recitals of fact set forth above (the “Recitals”)
are true and correct, and the Recitals by this reference are made a part of this
Agreement.
1.2 Exhibits. All
exhibits attached to this Agreement are by this reference incorporated in and
made a part hereof.
1.3 Abbreviations and
Definitions. The following abbreviations and definitions will be
used for purposes of this Agreement:
(a) The
abbreviations for the parties set forth in the Preamble will be used for
purposes of this Agreement.
(b) The
abbreviations and definitions set forth in the Recitals will be used for
purposes of this Agreement.
(c) “Agreement” shall mean
the Loan Agreement between the parties set forth herein.
(d) “Collateral” shall
mean the property as defined in Article Nine of this Agreement.
(e) “Events of Default”
shall mean the events of default specified in Article Eight of this Agreement
and each of such events shall be an “Event of Default”.
(f) “Lien” shall mean any
mortgage, pledge, security interest, encumbrance, lien, or charge of any kind
(including any agreement to give any of the foregoing, any conditional sales or
other title retention agreements, or any lease in the nature thereof, and the
filing of or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction).
(g)
“Principal Place of
Business of Borrower” shall mean the principal place of business and the
headquarters of the Borrower at which all of its records are kept, currently
at 0000 Xxxxxxx Xxxx, Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx X0X 0X0.
(h) “Proceeds” shall mean
whatever is received upon the sale, exchange, collection or other disposition of
the Collateral.
(i) “UCC” shall mean the
Florida Uniform Commercial Code, as amended.
ARTICLE
II - LOAN
2.1 Loan. The
parties hereto acknowledge and agree that the proceeds of the Notes shall be
used to acquire the membership units of Pak-It, LLC and to perform the
obligations of the Borrower arising under that certain Unit Purchase and
Exchange Agreement by and between Borrower, Pak-It, LLC and the Pak-It
Unitholders (the “Unit Purchase and Exchange Agreement”)
2.2 Depository
Account. Borrower shall cause Pak-It, LLC and Xxxxxxx Chemical
Laboratories, Inc to maintain its existing banking accounts as the sole banking accounts for such
entities and shall not change the identity of the persons now authorized to sign
or endorse checks on behalf of each such entity without the prior written
consent of Lender.
ARTICLE
III- REPRESENTATIONS AND WARRANTIES
The
Borrower represents and warrants to the Lender as follows:
3.1 Organization, Standing,
Corporate Power. Borrower is a Corporation duly
authorized and validly existing under the laws of the State of
Nevada. The Borrower has appropriate power and authority to own its
properties and to carry on its business as now being conducted, and the Borrower
has appropriate power and authority to execute and perform this Agreement and to
deliver the Notes and all other documents, instruments and agreements provided
for herein.
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3.2 This Agreement.
The execution and performance by the Borrower of this Agreement, the borrowing
hereunder, and the execution and delivery of the Notes and all other documents,
instruments and agreements provided for herein (a) have been duly authorized by
all requisite entity action; (b) will not violate any provision of law or of the
Borrower’s organizational documents; and (c) will not violate or be in conflict
with, result in a breach of, or constitute a default under any indenture,
agreement and other instrument to which the Borrower is a party or by which it
or any of its properties is bound, or any order, writ, injunction or decree of
any court or governmental institution.
ARTICLE
IV - CONDITIONS PRECEDENT
The
obligation of the Lender to make the Loan hereunder is subject to the following
conditions precedent:
(a) Representations and
Warranties. In order to induce the Lender to enter into this
Agreement and to make the Loan herein provided for and disbursements thereunder,
the Borrower represents and warrants to the Lender that on the date hereof, the
representations and warranties set forth in this Agreement or in the Unit
Purchase and Exchange Agreement are true and correct in all material
respects.
(b) Authority. This
Agreement and the other Loan Documents are valid and binding obligations of the
Borrower.
(c) Entity. The
present equity owners and management of Borrower shall not change without the
prior written consent of Lender in its sole discretion. Further, the proceeds of
any stock offering of Borrower or any subsidiary thereof shall be first applied
to repay the Notes and/or to perform the obligations of the Borrower arising
under the Unit Purchase and Exchange Agreement.
ARTICLE V
- AFFIRMATIVE COVENANTS
The
Borrower covenants and agrees with the Lender that from the date hereof and so
long as any sums are outstanding or may be borrowed hereunder, unless the Lender
shall otherwise consent in writing delivered to the Borrower, it will, as to
itself and Pak-It, LLC:
5.1 Entity
Existence. Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its existence, and all its rights,
licenses, permits and franchises required at the date hereof, or which may be
required in the future conduct of its business, and comply with all laws and
regulations applicable to it that materially affect the Borrower or Pak-It, LLC,
and conduct and operate its business in the same lines and in substantially the
same manner in which presently conducted and operated (subject to changes in the
ordinary course of business), and at all times maintain, preserve and protect
all property used and useful in the conduct of its business, and maintain same
in good working order and condition.
5.2 Insurance. Keep
its insurable properties adequately insured at all times by financially sound
and reputable insurers, and maintain such insurance to such extent and against
such risks, including liability insurance, fire, windstorm, business
interruption, flood, and other risks insured against by extended coverage as is
acceptable to Lender in its sole discretion. Borrower will furnish Lender
with a copy of such insurance policies containing an endorsement in favor of
Lender as loss payee and mortgagee as its interest may appear.
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5.3 Obligations and
Taxes. Pay all indebtedness and obligations promptly and in
accordance with normal terms, and pay and discharge promptly all taxes,
assessments and governmental charges or levies imposed upon it or in respect of
its property, 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 the Borrower shall not 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 the Borrower shall set aside on its books adequate reserves with
respect to any such tax, assessment, charge, levy or claim so
contested.
5.4 Financial Statements and
Other Information. Furnish to Lender: (a) the financial information
and reports referred to herein; (b) within ten (10) days after service of
process or equivalent notice, written notice of any litigation involving greater
than TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) in damages or
otherwise in cost to Borrower , including arbitrations and of any proceeding by
or before any governmental agency; and (c) provide Lender with such other
financial information and schedules it may request.
5.5 Notice of
Default. Give prompt written notice to Lender of all Events of
Default under any of the terms and provisions of this Agreement, the Note, or of
any other agreement, contract, indenture, document or instrument entered, or to
be entered into by it; if applicable, changes in management, litigation, and of
any other matter which has resulted in, or might result in, a materially adverse
change in its financial condition or operation.
5.6 Records. Keep
and maintain full and accurate accounts and records of its
operations and will permit Lender and its designated officers,
employees, agents and representatives, to have access thereto and to make
examination thereof at all reasonable times, to make audits, and to inspect and
otherwise check its properties, real, personal and mixed.
5.7 Execution of Other
Documents. Promptly, upon demand by Lender, execute all such
additional agreements, contracts, indentures, financing statements, documents
and instruments in connection with this Agreement as Lender may reasonably deem
necessary. (This authority shall be for ministerial matters only and
shall not allow Lender to increase Borrower’s liability under the
loan.).
5.8 No Borrowing.
Borrower shall not borrow nor permit any subsidiary to borrow any sums in excess
of $25,000.00 except in the normal course of business or grant any security
interest securing any debt now or hereafter arising except with the prior
written consent of Lender.
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ARTICLE
VI - NEGATIVE COVENANTS
The
Borrower covenants and agrees with Lender that from the date hereof and so long
as any sums are outstanding or may be borrowed under the Loan, unless the Lender
shall otherwise consent in writing delivered to the Borrower, it will
not:
6.1. Indebtedness.
Create or incur any indebtedness except in the ordinary course of business for
goods and services, and will not incur, create, assume or permit to exist any
indebtedness or liability for borrowed money or any indebtedness evidenced by
notes, bonds, debentures or similar obligations, except for the Note evidencing
the Loan described herein.
6.2 Notes, Accounts
Receivable. Sell, discount or otherwise dispose of notes, accounts
receivable or other rights to receive payments, with or without recourse, except
for collection in the ordinary course of business.
6.3 Disposal of Property;
Merger. During the term of the Loan, sell, lease, transfer or
otherwise dispose of its properties and assets, whether now owned or hereafter
acquired (except in the ordinary course of business); or consolidate with or
merge into any other corporation or entity, or acquire all or substantially all
the assets of any other person, firm, corporation or entity.
6.4 Loans. Make
any loans to any person, firm or entity, nor become a guarantor or surety, nor
pledge credit in any manner, directly or indirectly.
6.5 Payments to
Equityholder. Make any payments to any equityholder by way of cash
dividends, cash advances, repurchases or retirement of equity, or otherwise,
except as may be approved by the Lender from time to time in its reasonable
discretion after receipt of information from Borrower as to the proposed
payments.
6.6 Liens. Incur,
create, assume or permit to exist any mortgage, pledge, lien, charge, security
interest or other encumbrance of any nature whatsoever on any property or assets
now owned or hereafter acquired by the Borrower, except to Lender, other than:
(a) liens for taxes or assessments and similar charges either: (i) not
delinquent; or (ii) being contested in good faith by appropriate proceedings and
as to which the Borrower shall have set aside on its books adequate reserves;
and (b) currently existing indebtedness consented to in writing by
Lender.
6.7 Default Under Other
Agreements or Contracts. Commit to do or fail to commit to do, any
act or thing which would constitute an event of default under any of the terms
or provisions of any other agreement, mortgage, contract, indenture, document or
instrument executed by it, except those that may be contested in good faith, and
would not, if settled unfavorably, materially and adversely affect the financial
condition of the Borrower.
6.8 Compliance with Law
Generally. Be in violation of any law, ordinance, governmental
rules or regulations to which Borrower is subject, or fail to obtain any
licenses, permits, franchises or other governmental authorizations necessary to
the ownership of the properties of Borrower or to the conduct of its business,
which violation or failure to obtain might materially adversely affect the
business, prospects, profits, properties or condition (financial or otherwise)
of Borrower.
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6.9 Prepayments.
Except in the ordinary course of business, make any prepayments on any of its
debts and obligations, including any notes, leases, contracts and salaries,
except for payments to trade creditors made in order to take advantage of cash
discounts and except for the prepayment of any indebtedness owed by Borrower to
Lender.
6.10 Management and
Ownership. Make any material change in its management,
ownership or basic business, or enter into any merger, reorganization or asset
acquisition without the express written permission of Lender which will not be
unreasonably withheld. Borrower shall not exercise any authority to change the
existing management of Pak-It, LLC without the prior written consent of
Lender
6.11 Presale
Proceeds. Use the proceeds of any stock issuance
or borrowing by Borrower for any purpose other than to reduce the balance of the
Notes.
ARTICLE
VII - COLLATERAL
As
security for the full and timely payment of the Notes, together with interest
thereon, as well as any renewals, modifications or extensions thereof, and to
secure performance of all obligations of Borrower to Lender, however or whenever
created, Borrower covenants and agrees to execute security agreements and
financing statements in favor of Lender, in form and substance acceptable to
Lender, granting to Lender a first perfected security interest subject to no
other liens, encumbrances, or security interests in and to the collateral
described as any assets of Pak-It, LLC, including the stock of Xxxxxxx Chemical
Laboratories, Inc, the accounts, equipment, contract rights, inventory, general
intangibles, securities, the membership interest of Pak-It, LLC, cash, 310
Holdings, Inc. stock pledged by a third party, or proceeds of any of the above.
(collectively the “Collateral”).
ARTICLE
VIII - DEFAULTS AND REMEDIES
8.1 Events of
Default. If any one or more of the following events (herein called
“Events of Default”) shall occur for any reason whatsoever (and whether such
occurrences shall be voluntary or involuntary, or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court, or any order, rule or regulation of any administrative or
governmental body) and not be cured within any applicable cure period afforded
by Section 8.2, then Lender shall be entitled to the remedies set forth in
Section 8.2 of this Agreement. The Events of Default shall include,
but not be limited to, the following:
(a) Any
representation or warranty made herein, in the Unit Purchase and Exchange
Agreement or in any report, certificate, financial statement or other instrument
furnished in connection with this Agreement, or the borrowing hereunder shall
prove to be false or misleading in any material respect;
(b) Default
shall occur in the performance of any obligation arising hereunder or under the
Unit Purchase and Exchange Agreement, payment of interest or principal on any
indebtedness referred to herein, when and as the same shall become due and
payable, whether at the due date thereof or by acceleration or otherwise, or
failure of the Borrower to make payment of principal or interest on any other
obligation for borrowed money beyond any period of grace provided with respect
thereto, or in the performance of any other agreement, term or condition
contained in any agreement under which any such obligation is created, if the
effect of such default is to cause or permit the holder or holders of such
obligation to accelerate the maturity thereof;
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(c) Any
default shall occur in the due observance or performance of any covenant,
agreement or other provision of this Agreement, the Unit Purchase and Exchange
Agreement or the Instruments of Security referred to above other than for the
payment of money;
(d) The
Borrower, or any subsidiary thereof, shall: (i) apply for or consent
to the appointment of a receiver, trustee in bankruptcy for benefit of
creditors, or liquidator of it or any of its property; (ii) admit in writing its
inability to pay its debts as they mature; (iii) make a general assignment for
the benefit of creditors; (iv) be adjudicated a bankrupt or insolvent;
(v) file a voluntary petition in bankruptcy, or a petition or an
answer seeking reorganization or an arrangement with creditors, or seeking to
take advantage of any bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution or liquidation law or statute or an answer admitting an act of
bankruptcy alleged in a petition filed against it in any proceeding under any
such law; or, (vi) take any action for the purposes of effecting any of the
foregoing;
(e) An
order, judgment or decree shall be entered against any person or entity
comprising the Borrower with the application, approval or consent of the entity
by any court of competent jurisdiction, approving a petition seeking its
reorganization or appointing a receiver, trustee or liquidator of any such
party, or of all or a substantial part of the assets thereof, and such order,
judgment or decree shall continue un-stayed and in effect for any period of
sixty (60) days from the date of entry thereof;
(f) Final
judgments for the payment of money in excess of an aggregate of $50,000.00,
excluding claims covered by insurance, shall be rendered against the Borrower
and the same shall remain un-discharged for a period of thirty (30) consecutive
days during which execution shall not be effectively stayed, provided that a
judgment shall be deemed “final” only when the time for appeal shall have
expired without an appeal having been claimed, or all appeals and further review
claimed to have been determined adversely to the Borrower;
(g) A
material adverse change in the financial condition of the Borrower;
or,
(h) A
default in or breach of any covenant herein or in the Unit Purchase and Exhange
Agreement.
8.2 Remedy. Upon
the occurrence of any such Event of Default and after five (5) days written
notice and opportunity to cure has been provided to Borrower with respect to a
monetary default and after ten (10) days written notice and opportunity to cure
has been provided to Borrower as to all other defaults, Lender may, at its
option, declare all indebtedness of principal and interest due and payable,
whereupon the Note, (notwithstanding any provisions hereof) shall be immediately
due and payable, and Lender shall have and may exercise from time to time any
and all rights and remedies available to it under any applicable law; and
Borrower shall promptly pay all costs of Lender of collection of any and all
liabilities, and enforcement of rights hereunder, including reasonable
attorneys’ fees, and legal expenses of any repairs to any of the Collateral, and
expenses of repairs to any realty or other property to which any of the
Collateral may be affixed. Expenses of retaking, holding, preparing for
sale, selling, or the like, shall include Lender’s reasonable attorney’s fees
and legal expenses. Upon disposition by Lender of any property of Borrower
in which Lender has a security interest, Borrower shall be and remain liable for
any deficiency, and Lender shall account to Borrower for any surplus, and to
hold the same as a reserve against all or any liabilities of Borrower to Lender
whether or not they, or any of them be then due, and in such order of
application as Lender may, from time to time, elect. All rights, powers
and remedies contained herein or in any other agreement, instrument or document
executed in connection herewith are cumulative. As to any default
other than failure to pay sums due to Lender, and so long as the Lender’s
security is not impaired as determined in Lender’s sole discretion, the
afore-referenced curative period will be extended as long as Borrower is
exercising reasonable good faith and diligence in curing such incident of
default.
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In
addition to the foregoing, Lender may do any or all of the following to the
maximum extent permitted under the laws of the State of Florida, either in the
name of Lender or in the name of Borrower:
(i)Take
over and use all or any part of the materials, supplies, fixtures, equipment and
other personal property contracted for by Borrower.
ARTICLE
IX - APPOINTMENT OF A RECEIVER
In case
of default beyond the applicable curative period in any of the terms, covenants
and provisions of the Agreement, or upon the institution of suit to enforce any
rights and remedies of Lender hereunder, then Lender shall immediately and
without notice, be entitled as a matter of right, and without regard to the
value of the Collateral, or the solvency or insolvency of the Borrower, to the
appointment of a Receiver of all assets of Borrower, with the usual powers of
Receivers in such cases, said Receiver to continue to act for such period of
time as the Court appointing said Receiver may deem just and
proper.
ARTICLE X
- MISCELLANEOUS
10.1 Notices. Any
notice shall be conclusively deemed to have been received by the Borrower and be
effective on the day on which delivered to the Borrower, or if sent by
registered or certified mail, addressed to Borrower at 0000 Xxxxxxx Xxxx,
Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx X0X 0X0, on the second business day after the day
on which the return receipt indicates the notice was
delivered. Notwithstanding anything to the contrary herein, all
notices and communications to the Lender shall be directed to the following
address: 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
10.2 Survival of
Representations. All covenants, agreements, representations and
warranties made herein and in the certificates delivered pursuant hereto shall
survive the making by Lender of the Loan herein contemplated and the execution
and delivery to Lender of the Note evidencing such Loan and shall continue in
full force and effect so long as any indebtedness created hereunder is
outstanding and unpaid. All covenants and agreements by or on behalf of
either party which are contained or incorporated in this Agreement shall bind
and inure to the benefit of the successors and assigns of both parties
hereto.
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10.3 Effect of
Delay. Neither any failure nor any delay on the part of Lender in
exercising any right, power or privilege hereunder or under the Note shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right, power
or privilege.
10.4 Expenses. Each
Party will pay its own expenses incurred in connection with the preparation of
this Agreement and the borrowings hereunder.
10.5 Modification and
Waivers. No modification or waiver of any provision of this
Agreement or of the Note nor consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be in writing, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice to or demand on the Borrower in any
case shall thereby entitle the Borrower to any other or further notice or demand
in the same, similar or other circumstances.
10.6 Business Day.
Should any installment on the Notes become due and payable on other than a
business day of the Lender, the maturity thereof shall be extended to the next
succeeding business day with interest on the principal amount thereof at the
rate set forth herein.
10.7 Remedies
Cumulative. Any rights or remedies of the Lender hereunder or under
the Note, or any other security agreement or writing shall be cumulative and in
addition to every other right or remedy contained therein or herein, whether now
existing or hereafter at law or in equity or by statute or
otherwise.
10.8 Binding
Agreement. This Agreement shall be binding upon the parties hereto
and their successors and assigns and the terms hereof shall inure to the benefit
of Lender and its successors and assigns.
10.9 Exhibits. All
references to “Exhibits” contained herein are references to exhibits attached to
the Agreement, the terms and conditions of which are made a part hereof for all
purposes, the same as if set forth herein verbatim.
10.10 Number and Gender of
Words. Whenever herein the singular number is used, the same shall
include the plural where appropriate, and words of any gender shall include each
other gender where appropriate.
10.11 Captions. The
captions, headings, and arrangements used in this Agreement are for convenience
only and do not in any way affect, limit, amplify, or modify the terms and
provisions hereof.
10.12 Invalid
Provisions. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part.
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10.13 All Loans One
Loan. All loans and/or advances made hereunder shall constitute one
loan and the obligations of such loans and/or advances shall constitute one
obligation secured by the Collateral provided for herein.
10.14 Governing Law.
All documents executed pursuant to the transactions contemplated herein,
including, without limitation, this Agreement and each of the Loan Documents,
shall be deemed to be contracts made under, and for all purposes shall be
construed in accordance with, the internal laws and judicial decisions of the
State of Florida even though executed outside thereof; provided that this
Section 10.14 shall not affect the applicability of, and interpretation or
construction of, appropriate terms and provisions under the Uniform Commercial
Code of any jurisdiction which govern the security interests in any of the
Collateral. The Borrower hereby submits to the jurisdiction and venue
of the state and federal courts of Florida for the purposes of resolving
disputes hereunder or for the purposes of collection.
10.15 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above set forth.
Signed,
sealed and delivered
in the
presence of:
______________________________ /s/
Xxxxxxxx X.
Xxxxx
|
|
XXXXXXXX
X. XXXXX,
as Trustee of the Pak-It Members’
Trust
|
______________________________ By:
/s/
Xxxx
Xxxxxxxxx
Name:
Xxxx
Xxxxxxxxx
Title: Chief Executive
Officer
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