SECURITY AGREEMENT LINE OF CREDIT
Exhibit
10.65
SECURITY
AGREEMENT LINE OF CREDIT
This
Security Agreement is made and entered into at Aventura, Florida, as of February
2, 2010, by and between One Bio, Corp., a Florida corporation (“Borrower”), and
ONE-V Group, LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (jointly referred to as “Secured
Party”).
RECITALS:
WHEREAS
Borrower has executed a Secured Line Of Credit Promissory Note (the “Note”) of
even date herewith to provide for Secured Party’s extension of credit to the
Borrower from time to time; and
WHEREAS
this Security Agreement secures repayment under the Note.
NOW
THEREFORE, Borrower and Secured Party hereby agree as follows.
1.0
Creation of Security Interest
Borrower
grants to Secured Party a security interest in the collateral described in
Section 2 of this Security Agreement to secure performance and payment of all
obligations and “Indebtedness” (hereinafter defined) of Borrower to Secured
Party pursuant to the Note.
1.01
INDEBTEDNESS. For purposes of this Security Agreement, “Indebtedness”
means all monies owed under the Note, including costs, attorney’s fees, late
charges, accrued interest, and principal, including, but not limited to, all
renewals, extensions and modifications of the Note.
2.0
Collateral
The
collateral of this Security Agreement shall be:
a.
all equipment and fixtures listed on exhibit A;
b.
all tangible assets of Borrower, including, but not limited to, the inventory,
books, records and customer lists;
c.
all work in progress of Borrower;
d.
all general intangible assets of Borrower;
e.
all of the accounts of the Borrower, whether in existence as of the date of this
Security Agreement or to come into existence after the date of this Security
Agreement; and
f.
the proceeds of all collateral identified herein; and
g.
all after acquired collateral in each of the above listed
categories.
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3.0
Events of Default.
Borrower
will be in default on the happening of any of the following events or conditions
(referred to below as an event of default):
3.1
Borrower’s failure to pay when due any Indebtedness secured by this Security
Agreement, either principal or interest, provided that such failure continues 30
days after notice thereof from Secured Party to Borrower.
3.2
Default by Borrower in the punctual performance of any of the
obligations, covenants, terms, or provisions contained or referred to in this
Security Agreement or in the Note, provided that such default continues 30 days
after notice thereof from Secured Party to Borrower.
3.3
Any warranty, representation, or statement contained in this Security
Agreement or made or furnished to Secured Party by or on behalf of Borrower in
connection with this Security Agreement or to induce Secured Party to extend
credit to Borrower proves to have been false in any material respect when made
or furnished.
3.4
Borrower’s dissolution, or other termination of existence, merger or
consolidation with another, insolvency, forfeiture of right to do business,
business failure, appointment of a receiver of any part of the property of, the
assignment for the benefit of creditors by, or the commencement of any
proceedings under any bankruptcy or insolvency laws by or against Borrower or
any guarantor for Borrower.
3.5
Any guarantor of Borrower defaults in any obligation or liability to
Secured Party, provided that such failure continues 30 days after notice thereof
from Secured Party to such guarantor and Borrower.
4.0
Secured Party’s Remedies on Default
4.1
On the occurrence of an event of default, and at any time thereafter,
Secured Party may, after 15 days notice to Borrower, declare all or any of the
Indebtedness secured by this Security Agreement immediately due and payable and
will have, in addition to all other rights and remedies, the rights and remedies
of a secured party under Article 9 of the Illinois Uniform Commercial Code,
including, but not limited to, the right to sell or otherwise dispose of any or
all of the collateral.
4.2
Secured Party will give Borrower notice of the time and place of public
sale of the collateral or of the time after which any private sale or other
intended disposition is to be made by sending notice, as provided below, at
least 15 days before the sale or disposition, which provisions for notice
Borrower agrees are reasonable.
4.3
After deducting all costs and expenses of every kind incurred or
incidental to preparing for sale or of selling or otherwise disposing of the
collateral, including, but not limited to, attorney’s fees and other legal
expenses, which costs and expenses Borrower agrees to pay, Secured Party shall
apply the net proceeds of any sale or other disposition of the collateral to
payment of the Indebtedness in such order as Secured Party may elect. In
applying net proceeds to payment of the Indebtedness, proper rebate for any
unearned interest or discount will be made. After full payment of the
Indebtedness, Secured Party shall account to Borrower for any surplus. Borrower
shall remain liable to Secured Party for the payment of any deficiency with
interest at the rate set forth in the Note.
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4.4
No act, delay, omission, or course of dealing between Borrower and
Secured Party will be a waiver of any of Secured Party’s rights or remedies
under this Security Agreement, and no waiver, change, modification, or discharge
in whole or in part of this Security Agreement or the Indebtedness will be
effective unless in writing signed by Secured Party. A waiver by Secured Party
of any rights or remedies under the terms of this Security Agreement or with
respect to the Indebtedness on any occasion will not be a bar to the exercise of
any right or remedy on any subsequent occasion. All rights and remedies of
Secured Party under this Security Agreement are cumulative and may be exercised
singly or concurrently and the exercise of any one or more of them will not be a
waiver of any other.
5.0
Notices
All
notices, requests, demands, consents and other communications required or
desired to be given pursuant to this Security Agreement will be given in writing
and will be deemed duly given upon personal delivery, or on the third day after
mailing if sent by certified mail, postage prepaid, return receipt requested, or
on the day after deposit with a nationally recognized overnight delivery service
which maintains records of the time, place and recipient of delivery, and in
each case if directed as follows:
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If
to Borrower:
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▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇.
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▇▇▇▇▇
▇▇▇
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▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attention:
Marius Silvasan
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If
to Payee:
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ONE-V
Group, LLC and
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.,
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▇▇▇▇▇
▇▇▇▇,
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▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇
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or to
such other person, entity or address as Borrower or Secured Party may
respectively designate in like manner, from time to time.
6.0
Borrower agrees to correct, execute, or initial all typographical or
clerical errors discovered in this Security Agreement to Secured Party’s
satisfaction and to execute any and all documents necessary to grant Secured
Party a security interest in the collateral and to effectuate the provisions of
this Security Agreement.
7.0
Successors and Assigns
All
rights and remedies of Secured Party inure to the benefit of its successors and
assigns and Borrower may assert no claims or defenses against the assignee that
Borrower does not have against Secured Party.
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8.0
Survival
If any
provision of this Security Agreement is invalid or unenforceable under any law,
such provision is, and will be, totally ineffective to that extent, but the
remaining provisions will be unaffected and survive.
9.0
Section Headings
Section
headings used in this Security Agreement are for convenience only and are to be
given no substantive meaning or significance whatever in construing the terms
and provisions of this Security Agreement.
10.0
Governing Law
This
Guaranty shall be governed by and interpreted in accordance with the laws of the
state of Florida, without giving effect to principles of conflict of
laws.
10.1
Borrower and Secured Party each hereby irrevocably agree, consent and submit to
the exclusive jurisdiction of the state or applicable County Court of the State
of Florida and of the Federal District Court of the Southern District of Florida
with regard to any litigation, actions or proceedings arising from, relating to
or in connection with this Security Agreement.
10.2
Borrower and Secured Party each hereby waive their respective right to transfer
or change the venue of any litigation filed in the state or applicable County
Court of the State of Florida and of the Federal District Court of the Southern
District of Florida arising from, relating to or in connection with this
Security Agreement.
11.0
Authority to Act.
The
undersigned warrants that he has full authority to act on behalf of the Borrower
and to execute this Security Agreement on Borrower’s behalf.
12.0
No Modification
The terms
offered in this Security Agreement are authorized solely by Secured Party. It
cannot be modified or amended, nor can any of the collateral be released except
with an express writing signed by Secured Party.
[The
remainder of this page is blank. The executions are on the following
page.]
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EXECUTION
PAGE FOR
SECURITY
AGREEMENT LINE OF CREDIT
BY
AND BETWEEN ONE BIO, CORP. (“BORROWER”), AND ONE-V GROUP,
LLC
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (“SECURTED PARTY”)
IN
WITNESS WHEREOF, Borrower and Secured Party have executed this Security
Agreement as of the date first above written.
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Borrower
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Secured
Party
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ONE-V
Group, LLC
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By:
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/s/
Marius Silvasan
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By:
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/s/
Marius Silvasan
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Marius
Silvasan, Manager
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Title:
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CEO
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/s/
▇▇▇▇▇▇▇ Wenigarten
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▇▇▇▇▇▇▇
Wenigarten
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SECURED
LINE OF CREDIT PROMISSORY NOTE
AVENTURA,
FLORIDA
$3,000,000.00
FEBRUARY
2, 2010
1.0 PROMISE TO PAY. FOR VALUE
RECEIVED, One Bio, Corp., a Florida corporation (“Maker”) hereby promise to pay
to the order of ONE-V Group, LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (jointly “Payee”), the principal sum of
THREE MILLION AND NO/100 DOLLARS U.S. ($3,000,000.00) (“Maximum Line Amount”), or so
much thereof as may be advanced from time to time, together with interest on the
unpaid principal balance from time to time outstanding, at the rates and at the
times hereinafter provided.
2.0 MATURITY DATE. This Promissory
Note (the “Note”) shall
be paid in full on or before December 31, 2010 (the “Maturity Date”).
3.0 INTEREST. Interest will accrue
on a daily basis on the principal balance at the rate per annum equal ten
percent (10%) in excess of the Prime Rate, but no less than 15%. “Prime Rate”
means the reference rate in effect for commercial loans as published by The Wall Street
Journal (“WSJ”).
If the WSJ ceases to publish such Prime Rate, the Payee is authorized to select
and utilize a reasonably comparable nationally-published index rate which
similarly is utilized by large institutional lenders to establish the prime rate
to commercial Makers. The rate of interest hereunder is a floating adjustable
rate that shall adjust monthly on the first (1st) day
of each calendar month, provided that no adjustment will cause the rate to
exceed eighteen percent (18%) per annum during the term of this Note. Interest
shall be computed for the actual number of days elapsed on the basis of a year
consisting of 365 days or 366 days, whichever is applicable. The Rate shall
adjust and be fixed for each calendar month based upon the Prime Rate as in
effect on the first day of each calendar month. After the Maturity Date (whether
by acceleration or otherwise), interest shall accrue on the principal balance at
the rate of the Prime Rate plus ten percent (10%) per annum. If Maker defaults
under this Note, then interest will accrue at the fixed rate equal to the Prime
Rate in effect on the date of such default plus five percent (5%) per annum
(“Default Rate”), so
long as such default shall continue, before and after any demand or
judgment.
4.0 PAYMENTS. If
not sooner paid, all unpaid principal, all accrued and unpaid interest and all
other sums due and payable under this Note or any of the other Loan Documents
(as hereinafter defined) shall be due and payable in full on the Maturity
Date.
4.1 All payments shall
be made in lawful money of the United States and in immediately available funds
to the Payees at the below wire instruction, or at such other place as the Payee
(or the holder of this Note) may from time to time designate in
writing.
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For
wires to ONE-V Group LLC
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Bank:
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RBC
Bank
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Address:
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▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Acct
#:
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7290003753
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Routing/ABA:
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▇▇▇▇▇▇▇▇▇
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SWIFT:
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CNTAUS33
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50%
of all sums due
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For
wires to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Bank:
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RBC
Bank
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Address:
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▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇
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Acct
#:
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7243088977
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Routing/ABA:
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▇▇▇▇▇▇▇▇▇
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SWIFT:
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CNTAUS33
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50%
of all sums due
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4.2 The Indebtedness due
under this Note may be prepaid in whole or in part, at any time, without
penalty.
5.0 LOAN
DOCUMENTS. The Maker may execute simultaneously herewith or has executed
certain documents (this Note and such other documents are hereinafter
collectively referred to as the “Loan Documents”), in favor of
the Payee. A default under this Note shall, at the option of the Payee, also
constitute a default under any or all of the other Loan Documents. In addition
to, and not in limitation of, the foregoing, a default under any or all of the
other Loan Documents shall, at the option of the Payee, constitute a default
under this Note.
6.0 METHOD OF
ADVANCES. Provided that no Event of Default (as hereinafter defined) then
exists, Payee shall make the Maximum Line Amount available to Maker, in one or
more advances at any time and from time to time from the date hereof until the
Maturity Date, during which time Maker may voluntarily repay, subject to the
terms and conditions herein, but not re-borrow,
the principal balance of this Note.
6.1 The amount and date
of each advance under this Note and the amount and date of each payment of
principal and interest thereon shall be recorded by Payee on its books and
records from time to time and shall be prime facie evidence of such amounts
owing; provided, however, that Payee’s failure to record any amount or an error
in recording any such amount shall not limit or otherwise affect the Maker’s
obligations hereunder to repay the principal amount of the Loan, together with
all accrued interest thereon.
7.0 Security
Agreement. To secure the payment and performance of the Indebtedness and
obligations contained herein, Maker has contemporaneously herewith executed a
Security Agreement (the “Security Agreement”) [this
Note, the Security Agreement and any promissory note or other instrument at any
time evidencing any indebtedness of Maker to Payee or any other security
agreement, loan agreement, mortgage, assignment, guaranty or other agreement
that now or hereafter secures or relates to any indebtedness or obligation now
or hereafter owing by Maker to Payee or that secures or relates to any guaranty
of any such indebtedness or obligation are collectively, the “Loan Documents”]. Loss, theft,
damage to, destruction or seizure of the “Collateral” (as that term is defined
in the Security Agreement) shall not relieve Maker from the payment and
performance of any obligation or Indebtedness secured hereby.
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8.0 INDEBTEDNESS.
For purposes of this Note, “Indebtedness” means all monies owed under this Note,
including costs, attorney’s fees, late charges, accrued interest, and Principal;
and all other obligations or indebtedness now or hereafter owed by Maker to
Payee, including, but not limited to, all renewals, extensions and modifications
of such obligations or indebtedness, regardless of whether such indebtedness is:
(a) not presently in existence, (b) not presently intended or contemplated by
Maker or Payee, (c) indirect, secondary or contingent, or (d) of a kind or class
that is different from the indebtedness or obligation now owing by Maker to
Payee.
9.0 WAIVER OF MARSHALLING
OF ASSETS. The Maker hereby waives for itself and, to the fullest extent
not prohibited by applicable law, for any subsequent lienor, any right the Maker
may now or hereafter have under the doctrine of marshalling of assets or
otherwise which would require the Payee to proceed against Maker’s assets in any
particular order. The Payee shall have the right to proceed, in its sole
discretion, against any such assets in such order and in such portions as the
Payee may determine, without regard to the adequacy of value or other liens on
any of Maker’s assets, and any such action shall not in any way be considered as
a waiver of any of the rights, benefits, liens or security interests created by
any of the Loan Documents.
10.0 EVENTS OF
DEFAULT. Upon any of the following events (each an “Event of Default”), at the
election of the Payee, the entire unpaid principal balance of the indebtedness
evidenced hereby, together with all accrued but unpaid interest thereon at the
Default Rate and all other sums or charges due hereunder or secured by or
required to be paid by the Maker under any of the loan Documents, shall become
immediately due and payable:
10.01 If the Maker fails
to pay any sum on the date such payment is due as herein and is not cured within
fifteen (15) days after notice from Payee;
10.02 the filing of any
petition by Maker under Title 11 of the United States Code, the Bankruptcy Code
now or hereafter in force;
10.03 the execution and
delivery by Maker of a general assignment for the benefit of
creditors;
10.04 the appointment of a
receiver for Maker by a court of competent jurisdiction or the filing of any
petition against Maker under Title 11 of the United States Code, the Bankruptcy
Code now or hereafter in force, which appointment or filing shall not have been
vacated or remain undismissed within a period of sixty (60) days after the date
of the appointment of such receiver or filing of such petition;
10.05 insolvency of Maker.
Insolvency shall be defined as when the current liabilities, less payables due
the Payee, exceed the current assets of Maker as determined in accordance with
generally accepted accounting principles, or if Maker is unable to meet its
obligations as they come due;
10.06 failure of Maker or
any guarantor or co-Maker to comply with any other provision in this Note or
failure to comply with the provisions of any other Loan Document which is not
cured within 15 days after notice from Payee;
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10.07 any material adverse
change occurs in the financial condition of Maker as determined by Payee which
is not cured within 15 days of notice from Payee; or
10.08 the substantial
cessation of business operations of Maker for more than fifteen (15) days after
notice from Payee;
10.09 If the Maker
breaches any covenant or agreement herein or in any of the other Loan Documents,
and such failure remains uncorrected at the expiration of any applicable grace
period provided for in the Loan Documents.
11.0 REMEDIES AND
RECOURSES. Upon the occurrence and during the existence of any Event of
Default, or if this Note at any time or for any reason ceases to be in full
force and effect or the validity or enforceability of this Note shall be
contested by Maker then at the option of Payee and without demand or notice to
Maker except as expressly provided herein (demand and notice as to such event
being hereby expressly waived by Maker), Payee shall, to the
fullest extent permitted by law, be entitled to:
11.1 suspend the
disbursement of funds under this Note; and/or
11.2 accelerate this Note
and all Indebtedness declaring it due and owing immediately. In addition, Payee
may exercise any or other powers, rights, remedies or recourses afforded to
Payee under this Note or other documents relating to the Indebtedness or
otherwise available under applicable law.
12.0 PERFORMANCE OF MAKER
OBLIGATIONS. If Maker shall fail to do any action or thing which Maker
has agreed to do under this Note or in any Loan Document, Payee may, but shall
not be obligated to, do the same or cause it to be done, or remedy such breach
or violation, and if in connection therewith, Payee shall make any advances or
expenditures of money for the account of Maker, then such advances or
expenditures shall be added to the obligations and liabilities of Maker
hereunder and shall be repaid to Payee upon demand together with interest from
the date advanced or expended to and including the date of repayment at the
Default Rate as defined in this Note.
13.0 POWER OF
ATTORNEY. Maker hereby appoints
Payee, with full power of substitution, as Maker’s attorney-in-fact for the
purpose of carrying out the provisions of this Note and taking any action and
executing any document or instrument which Payee may deem necessary or advisable
to accomplish the purposes hereof, which appointment is irrevocable and coupled
with an interest, all in accordance with the provisions of this Note. Maker
shall indemnify, save, defend and hold harmless Payee from and against any and
all claims, demands, losses, judgments and liabilities (including liabilities
for penalties) of whatsoever kind and nature, and to reimburse Payee for all
costs and expenses, including court costs and reasonable attorneys fees and
expenses, growing out of or resulting from the enforcement of this Note or any
document related to the Indebtedness, or the exercise by Payee of any rights,
powers, privileges, interests or remedies granted to Payee hereunder, except
such as a result from Payee’s own gross negligence or misconduct. In no event
shall Payee be liable for any matter or thing by virtue of, arising from or in
connection with this Note or any Loan Document, other than to account for monies
which may be actually received by Payee in accordance with the terms
hereof.
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14.0 NOTICE. All notices, demands or
other communications required or desired to be given hereunder shall be in
writing, signed by Maker or its authorized agents or attorneys, or Payee, its
authorized agents or attorneys, as the case may be, and shall be deemed to have
been properly given if served in person, or if mailed, by regular mail and sent
by facsimile transmission to the following address and facsimile
number:
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If
to Maker:
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▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇.
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▇▇▇▇▇
▇▇▇
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▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attention:
Marius Silvasan
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If
to Payee:
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ONE-V
Group, LLC and
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.,
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▇▇▇▇▇
▇▇▇▇,
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▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇
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or to
such other address as may from time to time be designated by the party to be
addressed, by notice to the other in the manner hereinabove provided. Any such
notices, demands or other communications mailed as provided herein shall be
deemed to have been given and received on the business day faxed.
15.0 GENERAL
15.01 No waiver of any
provision herein or action by Payee contrary to the terms of this Note shall
constitute a waiver of any subsequent default of the same or different terms,
covenants or conditions herein.
15.02 Wherever “Payee” is
referred to herein, it shall be deemed to refer to Payee first name above or any
other assignee or subsequent holder of this Note.
15.03 Maker agrees to
correct, execute, or initial all typographical or clerical errors discovered in
this Note to Payee’s satisfaction and to execute any and all documents necessary
to effectuate the provisions of this Note.
15.04 This Note may only
be amended by a written agreement signed by all parties to this Note, provided,
however, that the requirement of a written amendment may not be amended in any
circumstance.
15.05 As an express
condition precedent and inducement to Payee to accept this Note, Maker hereby
affirmatively waives: (I) presentment of this Note, (ii) claims of setoff
against Payee.
15.06 MAKER
KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHT TO TRIAL BY JURY AND FULLY
UNDERSTANDS THAT BY SIGNING THIS NOTE IT HAS GIVEN UP ITS RIGHT TO TRIAL BY
JURY.
Maker’s
Initials (by CEO): _________
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15.07 If a court of
competent jurisdiction determines any provision of this Note to be invalid or
unenforceable, all other provisions of the Note shall survive and be enforced
according to their terms.
16.0 COMMERCIAL
PURPOSE. This Note evidences and pertains to a business loan and
financing solely for commercial purposes.
17.0 APPLICABLE LAW,
JURISDICTION AND VENUE. The laws of the State of Florida shall govern
this Note. In all legal proceedings or actions under this Note, Maker submits to
the exclusive personal jurisdiction and venue of the state or applicable County
Court of the State of Florida and of the Federal District Court of the Southern
District of Florida, if applicable, whichever Payee may elect in its sole
discretion, and waives all defenses of inconvenient forum.
18.0 FACSIMILE
SIGNATURE. For the sake of expediency in providing financing and funding
to the Maker under the Note, the Maker (as well as any other guarantor or
obligor hereof) agree, as an express inducement to Payee to provide such
financing, that: (a) Payee may elect to rely upon any fax or electronically
transmitted signature to this Agreement (as well as any Note, guaranty, security
instruments or other documents pertaining hereto) as if the same were an
original signature hereto or thereto; and (b) upon any such fax or electronic
transmission of a signature hereto or to any such other instrument, the Maker
(and/or guarantor or other respective signatory[ies]) covenants, represents and
warrants to Payee that the original of such executed Agreement, Note, guaranty,
security instrument or other such documents exist and have been validly executed
and are the property of Payee and that such original(s) instrument(s) are
possessed and held “in trust” by such Maker or signatory for the express benefit
of Payee and will promptly be delivered to Payee as Payee.
19.0 AUTHORITY TO
ACT. The undersigned warrants that he has full authority to act on behalf
of the Maker and to execute this Note on Maker’s behalf.
20.0 NO
MODIFICATION. The rates and terms offered in this Note are authorized
solely by Payee. It cannot be modified or amended, nor can any of the Collateral
be released except with an express writing signed by Payee.
THIS
NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Maker:
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By:
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/s/ Marius Silvasan | ||
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Title:
|
CEO
|
||
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