Attached files
Exhibit
10.42
Amendment
One
to
Loan
Agreement
dated March 31, 2019
This Amendment to
Loan Agreement
(hereinafter referred to as the "Amendment
One") is entered as of
October 31, 2019. Amendment one
is by and between
CLR ROASTERS,
INC. of 2131-41
NW 72 Avenue, Miami, Flo1ida, 33122 (hereinafter referred to,
interchangeably, as
"CLR" or
the "Lender" )
and H&H COFFEE GROUP EXPORT
CORP. of 980 West 23
Street, Hialeah, Florida, 33010 (hereinafter referred to, interchangeably, as
"H&H" or the " Borrower").
Either may
be referred to
in the singular as Party or
collectively as Parties.
RECITALS:
Whereas: The Parties Entered
into a Loan
agreement dated March 31,
2019 attached hereto as Exhibit
"A" which
has a maturity date for repayment of October 31, 2019
Amendment One
New Terms:
1.
The Parties wish to
amend
the Loan Agreement by nature of
execution is
this
Amendment One
whereby Paragraph
4 Tit led
Repayment, so it now
reads:
All outstanding principal and
interest due
under this Agreement shall be due
and payable by
the Borrower at
the end of the
2020 harvest
(or when the 2020 season's
harvest is exported
and collected), but
never to be later than November 30, 2020.
All
other terms and
conditions of the loan
agreement will remain in
full force and affect.
2.
This
Agreement (Amendment
One) constitutes
the entire agreement between the parties and there are
no further
items or provisions, either oral or otherwise that amend
the Original Note
outlined in Exhibit
A.
IN WITNESS
WHEREOF, the parties have
entered into this Agreement as of the day and year first above
written:
H&H COFFEE GROUP EXPORT, CORP.
/s/ Alain Hernandez
Company
Representative’s Signature
Alain Hernandez
Company
Representative’s Printed Name
CLR ROASTERS, LLC
/s/ David S
Briskie
Company
Representative’s Signature
David S Briskie
Managing Director
EXHIBIT
“A”
LOAN AGREEMENT
THIS LOAN AGREEMENT (hereinafter
referred to as the "Agreement") is entered into this 31st
day of _ March
2019, by and between CLR ROASTERS, INC. of 2131-41 NW 72 Avenue,
Miami, Florida, 33122 (hereinafter referred to interchangeably, as
"CLR" or the "Lender" and H&H COFFEE GROUP EXPORT CORP, of 980
West 23 Street, Hialeah, Florida, 33010 (hereinafter referred to,
interchangeably, as "H&H" or the "Borrower"). Either may be
referred to in the singular as party or collectively as
parties.
IN CONSIDERATION OF The Lender loaning
certain monies (“the Loan”) to the Borrower, and the
Borrower repaying the loan to the Lender, both parties agreed to
keep, perform and fulfill the promises and conditions set out in
this Agreement.
Loan Amount & Interest
1.
The Lender promises
to loan up to $5,000,000.00 USO to the Borrower and the Borrower
promises to repay this principal amount to the Lender, with
interest payable on the unpaid principal at the rate of 9 percent
per annum, calculated yearly not in advance, beginning on 19 March
2019.
2.
Borrowing
procedures - Each advance under the secured loan, other than the
initial funding, shall be made available to the Borrower upon
delivery of a written Advance request (a copy of which is attached
hereto at exhibit 1). The initial funding was provided to the
Borrower through a series of cash advances aggregating $5,000,000,
provided in October 2018 through December 2018, which will become
the principle balance of the loan upon execution of this agreement.
(Attached hereto as Exhibit 2 is a detailed listing of the advances
made for October 2018 through December 2018).
Purpose of the Loan
3.
Lender shall
provide financing to Borrower for the Borrower’s Producer
Hedging Program.
Repayment
4.
All outstanding
principle and interest do under this Agreement shall be due and
payable by the Borrower at the end of the harvest (or when the
season’s harvest is exported and collected), but never to be
later than 31 October for any harvest year which will for the
purposes of this Agreement be defined as 1 November through 31
October for any Harvest Year. For the purposes of this Agreement, a
Harvest Year is defined as beginning on 1 November and ending on 31
October of the subsequent calendar year.
Default
5.
Notwithstanding
anything to the contrary in this Agreement, if the Borrower
defaults in the performance of any obligation under this Agreement,
then the Lender may declare the principle amount owing and interest
due under this Agreement at the time to be immediately due and
payable. The Lender shall have the right to offset any amounts owed
to the Borrower, resulting from other business activity between the
Parties, with amounts do under the Agreement.
6.
If the Borrower
defaults in payment as required under this Agreement or after
demand for ten (10) days, the Security will be immediately provided
to the Lender and the Lender is granted all rights of repossession
as a secured party.
Security
7.
H&H hereby
assures and guarantees to CLR that the $5,000,000 Loan will always
have collateral, including the cash value of the Borrower's
brokerage account with INTL FCStone (the “Hedging
Account”), Trade receivables, and green coffee owned by
Borrower, in excess of $5,000,000, in the aggregate. The Borrower
agrees to provide the Lender, on a monthly basis, the monthly
Hedging Account statements and detail of trade receivables and
inventory, in a form acceptable to the Lender.
8.
This Loan is
secured by the following security (the “Security”): The
Hedging Account, all trade receivables and green coffee inventory
in the possession of the Borrower, and all green coffee contracts,
a description of which shall be included on the attached Exhibit 3,
which may be amended from time to time.
9.
The Borrower Grants
to the Lender hey security interest in the Security until the Loan
is paid in full. The Lender will be listed as a lender on the title
of the Security whether or not the Lender elects to perfect the
security interest in the Security. The Borrower will do everything
necessary to assist the Lender in perfecting its security
interest.
10.
The Lender may, but
is not required, to take such actions from time to time they deem
appropriate to maintain or protect the Security. The Lender show
exercise reasonable care in the custody and preservation of the
Security if the Lender takes such action.
11.
Lender has the
right to inspect and inventory the Security.
Governing Law
12.
APPLICABLE LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO SUCH STATE’S
CONFLICTS OF LAWS OR CHOICE OF LAW RULES. H&H, HEREBY WAIVES
WITH FULL KNOWLEDGE THAT IT IS DOING SO, THE RIGHT TO HAVE ANY
MATTER LITIGATED IN OR HAVE THE LAW OF NICARAGUA APPLIED IN ANY WAY
TO THE ENFORCEMENT OF THE AGREEMENT OR ANY PROVISION THEREOF. THE
PARTIES FURTHER AGREE THAT SHOULD THE NEED ARISE TO EXECUTE FURTHER
DOCUMENTS EITHER IN THE SATE OF FLORICA OR IN NICARAGUA TO GIVE
FULL FORCE AND EFFECT TO THIS PARAGRAPH OR ANY OTHER PROVISION(S)
OF THIS AGREEMENT UNDER THE LAWS OF THE STATE OF FLORIDA THAT THEY
WILL DO SO IMMEDIATESLY AND WITHOUT DELAY. VENUE SHALL BE PROPER IN
MIAMI-DADE COUNTY, FLORIDA.
Costs
13.
All costs, expenses
and expenditures including, without limitation, the complete legal
costs incurred by enforcing this Agreement As a result of any
default by the Borrower, will be added to the principle then
outstanding and will immediately be paid by the
Borrower.
Binding Effect
14.
This Agreement will
pass to the benefit of and be binding upon the representative
heirs, executors, administrators, successors and permitted assigns
of the Borrower and Lender.
Amendments
15.
This Agreement may
only be amended or modified by a written instrument executed by
both the Borrower and the Lender
Severability
16.
The clauses in
paragraphs contained in this Agreement are intended to be read and
construed independently of each other. If any term, covenant,
condition or provision of this Agreement is held by court of
competent jurisdiction to be invalid, void or unenforceable, it is
the parties’ intent that such provision be reduced in scope
by the court only to the extent deemed necessary by that court to
render the provision reasonable and enforceable and the remainder
of the provisions of this Agreement will in no way be affected,
impaired or invalidated as a result.
General Provisions
17.
Headings are
inserted for the convenience of the parties only and are not to be
considered when interpreting this Agreement. Words in the singular
mean and include the plural and vice versa. Words in the masculine
mean and include the feminine and vice versa.
18.
This Agreement may
be executed simultaneously in two or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute but one and the same instrument. Execution and delivery
of this Agreement by delivery of a facsimile copy bearing the
facsimile signature of a party shall constitute a valid and binding
execution and delivery of this Agreement by such party. Search
facsimile copies shall constitute enforceable original
documents.
19.
This agreement and
the rights of CLR hereunder may be assigned by CLR.
20.
Any notice or
communication required or permitted hereunder shall be sufficiently
given if sent by first class mail, postage prepaid.
(a)
If to CLR,
addressed to it at:
Telephone
No.
(b)
If to H and H,
HERNANDEZ:
Telephone
No.
21.
This Agreement
constitutes the entire agreement between the parties and there are
no further items or provisions, either oral or
otherwise.
IN WITNESS HEREOF, the parties have
entered into this Agreement as of the day and year first above
written.
H&H COFFEE GROUP EXPORT, CORP.
/s/ Alain P.
Hernandez
Alain P.
Hernandez
Company
Representative and Printed Name
CLR ROASTERS, LLC
/s/ David S
Briskie
David S Briskie
Company
Representative and Printed Name