Exhibit 10.1
LOAN AGREEMENT
THIS AGREEMENT is made as of July 29, 2012
BETWEEN:
DATA PANGEA LLC., a limited liability corporation incorporated under
the laws of Florida, having an office at
(the "BORROWER")
AND:
MLJP LLC
(the "LENDER")
WHEREAS:
A. The Borrower has requested and the Lender has agreed to lend to the
Borrower an aggregate principal amount of $350,000 (the "LOAN"), to be used
by the Borrower for general corporate purposes pursuant to the budget
previously provided by the Borrower and approved by the Lender;
B. The parties wish to record the terms and conditions of the Loan to be made
pursuant to the terms of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that pursuant to the premises and in
consideration of the mutual covenants contained in this Agreement and the
agreement of the Lender to advance funds to the Borrower, the parties covenant
and agree as follows:
1. LOAN
1.1 LOAN. The Lender will make the Loan available to the Borrower, to be drawn
down in one draw of $ 350,000.
1.2 CLOSING. Subject to section 1.4 below, the Lender will make the advance of
$350,000 to the Borrower on execution of this Agreement or such other date as
the parties may agree.
1.3 INTEREST RATE. The Loan is to bear interest from the date any funds are
advanced to the Borrower to the date of full repayment of all amounts
outstanding under the Loan at 12% per annum, accruing daily before as well as
after maturity, default or judgment (the "INTEREST RATE"). Interest shall be
payable quarterly, in arrears, commencing August 29, 2012, and quarterly
thereafter.
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1.4 CONDITIONS PRECEDENT TO ADVANCE. The Lender will not have any obligation to
advance all or any portion of the Loan to the Borrower until all of the
following have been fulfilled to the Lender's satisfaction:
(a) the Borrower has executed and delivered this Agreement; and
(b) the Borrower has executed and delivered to the Lender a Promissory
Note in the form attached hereto as Schedule "B";
1.5 PAYMENT OF PRINCIPAL AND INTEREST. The Borrower will pay to the Lender in
full the principal amount of the Loan and all accrued and unpaid Interest on the
earlier to occur of:
(a) September 1, 2013, subject to extension upon mutual agreement of the
Lender and Borrower; or
(b) an Event of Default occurring hereunder.
1.6 PREPAYMENT. The Borrower may prepay the Loan in whole or in part, at any
time and from time to time without notice, bonus or penalty.
1.7 APPLICATIONS OF PAYMENTS. All payments of cash made by the Borrower to the
Lender are to firstly be applied to interest, secondly to any outstanding Loan
Facilitation Fee amount and thirdly to the principal balance outstanding under
the Loan.
1.8 PROMISSORY NOTE. The Loan is to be evidenced by a promissory note
("PROMISSORY NOTE") in the form attached hereto as Schedule "B", issued by the
Borrower to the Lender for the amount of the Loan.
1.9 MANNER OF PAYMENTS. The Borrower will make all payments to the Lender under
this Agreement by wire transfer, cheque, direct deposit or bank draft in
immediately available funds to such account or accounts of the Lender the Lender
may direct from time to time.
2. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower represents and
warrants to the Lender that:
(a) it has been duly incorporated, validly exists and is in good standing
under the jurisdiction of its incorporation and each jurisdiction
where it carries on business and has been duly licensed to carry on
business in all jurisdictions where it is carrying on business,
(b) it has the power and authority to enter into, execute and deliver and
to keep, observe and perform all of the covenants, agreements and
other obligations made by or imposed on it under this Agreement (the
"LOAN DOCUMENT"),
(c) the Loan Document and all other instruments and agreements delivered
by the borrower to the Lender pursuant to this Agreement have been or
will be validly executed by it or on its behalf and, when delivered to
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the Lender, will be legal, valid and binding obligations of it,
enforceable in accordance with their respective terms, except as
enforcement may be limited by,
(i) applicable bankruptcy, insolvency, moratorium, reorganization and
similar laws at the time in effect affecting the rights of
creditors generally, and
(ii) equitable principles which may limit the availability of certain
remedies, including the remedy of specific performance,
(d) the execution, delivery and performance by it of the Loan Document
does not contravene any material provision of any regulation, order or
permit applicable to it, or cause a breach of or constitute a default
under or require any consent under any agreement or instrument to
which it is a party or by which it is bound except such as have been
obtained,
(e) there are no suits or judicial proceedings or proceedings before any
governmental commission, board or other agency, actual, pending or to
its knowledge threatened against it which involves a significant risk
of a judgment or liability which, if satisfied, would have an adverse
effect upon its financial position or the ability to meet its
obligations under this Agreement or to grant the Loan Document,
(f) it is not in default under any guarantee, note or other instrument
evidencing any indebtedness, other than as disclosed in writing to the
Lender by the Borrower, and to its knowledge there exists no state of
facts which, after notice or lapse of time or both or otherwise, would
constitute such a default, and
(g) no event is outstanding which constitutes, or with notice or lapse of
time or both would constitute, an Event of Default (as defined below).
3. COVENANTS
3.1 AFFIRMATIVE COVENANTS. Until such time that the Loan and any outstanding
Interest are repaid in full, the Borrower will:
(a) pay all amounts due and owing to the Lender when due;
(b) at all times maintain its corporate existence and be registered or
licensed to carry on business in all jurisdictions where the nature of
its business makes it prudent to do so;
(c) preserve and protect the goodwill, assets, business and undertaking of
the Borrower;
(d) maintain adequate records and books of account reflecting all
financial transactions in conformity with generally accepted
accounting principles and provide to the Lender its unaudited
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quarterly and audited annual financial statements, including its
balance sheet, income statement and statement of cash flow;
(e) comply in all material respects with all material contracts,
arrangements, agreements or understandings entered into by the
Borrower;
(f) materially comply with all applicable environmental laws and promptly
provide notice to the Lender of any material default or breach of any
environmental law; and
(g) pay all taxes and claims when due.
3.2 NEGATIVE COVENANTS. Until such time that the Loan and any outstanding
Interest are repaid in full and without the prior consent of the Lender, the
Borrower will not
(a) create, assume or have outstanding any mortgage, pledge, charge,
assignment or other security, whether fixed or floating, on any of its
properties, assets or undertakings ranking or purporting to rank or
capable of being enforced in priority, or PARI PASSU with the Loan and
the Loan Document;
(b) guarantee, endorse or otherwise become surety for the obligations of
any other person;
(c) reorganize or amalgamate with any other person;
(d) make any inter-company loans or shareholder loans or investments,
except in the ordinary course of business;
(e) dispose of any of its assets, property or undertaking, except in the
ordinary course of business; or
(f) materially change its business.
4. EVENTS OF DEFAULT
4.1 EVENTS OF DEFAULT. Each of the following events constitutes a default by the
Borrower under this Agreement (each, an "EVENT OF DEFAULT"), unless the Lender
agrees to waive such default:
(a) the Borrower fails to pay any amount owing to the Lender under this
Agreement when due, and such amount remains unpaid for five days;
(b) any of the representations or warranties of the Borrower in this
Agreement are misleading, or incorrect in any material respect;
(c) an order is made or a resolution passed for the liquidation or
winding-up of the Borrower; or
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(d) if the Borrower becomes insolvent, admits in writing its inability to
pay its debts as they become due or otherwise acknowledges its
insolvency, commits an act of bankruptcy, makes an assignment or bulk
sale of its assets, is adjudged or declared bankrupt or makes an
assignment for the benefit of creditors or a proposal or similar
action under bankruptcy or any similar legislation, or commences any
other proceedings relating to it under any reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or
statute of any jurisdiction whether now or thereafter in effect, or
consents to any such proceeding.
4.2 REMEDIES FOR EVENTS OF DEFAULT. Upon the occurrence of an Event of Default,
the Lender may:
(a) immediately declare due and payable the outstanding balance of the
Loan and any unpaid accrued Interest without presentment of the Notes,
and without demand, protest or other notices of any kind, all of which
are expressly waived by the Borrower; and/or
(b) exercise any and all rights, powers, remedies and recourses available
to the Lender under the Loan Document, at law, in equity or otherwise.
4.3 WAIVER OF DEFAULT. The Lender may, in writing in their absolute discretion
at any time and from time to time, waive any breach by the Borrower of any of
its covenants in this Agreement, provided that any such waiver does not
constitute a continuing waiver and does not constitute a waiver of any other
term or provision of this Agreement.
4.4 NO WAIVER. No failure or delay on the part of the Lender in exercising any
right, power or privilege under this Agreement operates as a waiver thereof; nor
does any single or partial exercise of any right, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies in this Agreement
expressly specified are cumulative and not exclusive of any rights or remedies
which the Lender would otherwise have. The acceptance by the Lender of any
payment of or on account of the Loan after a default or of any payment on
account of any partial default is not to be construed to be a waiver of any
right to take advantage of any future default or of any past default not
completely cured thereby. The Lender may exercise any and all rights, powers,
remedies and recourses available to them under this Agreement, or any other
remedy available to them, concurrently or individually without the necessity of
an election.
5. GENERAL
5.1 PERSON. References in this Agreement to a "person" includes any individual,
partnership, joint venture, company, corporation, unincorporated entity,
government entity or other entity, whether having legal status or not, and
includes persons acting in concert with each other.
5.2 CURRENCY. All references to dollars or currency in this Agreement are to
United States dollars.
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5.3 GOVERNING LAW. This Agreement and all matters arising under it are to be
governed by and construed in accordance with the laws of the State of Nevada and
the federal laws applicable therein, and each of the parties submit and attorn
to the jurisdiction of the courts of Nevada.
5.4 SEVERABILITY. If any provision of this Agreement or any part thereof is
determined to be invalid, it is to be severable and severed from this Agreement
and the remainder of this Agreement is to be construed as if such invalid
provision or part has been deleted from this Agreement.
5.5 NOTICE. All notices, demands and payments under this Agreement must be in
writing and may be delivered personally, via e-mail or by facsimile transmission
to the addresses set out on the first page of this Agreement or to such other
addresses as may from time to time be notified in writing by the parties. All
notices will be deemed to have been given and received on the next business day
following the date of transmission or delivery, as the case may be.
5.6 CO-OPERATION. Each of the parties will execute all such further documents
and do all such further things as may reasonably be required by another party in
order to give full effect to this Agreement.
5.7 FEES AND EXPENSES. The Borrower will pay to the Lender all of its reasonable
legal and other fees and disbursements in respect of the Loan, including the
preparation, execution and carrying out of this Agreement, and on default will
pay all costs, charges and expenses of the Lender taken to protect and preserve
their security and in enforcing this Agreement. All such costs and expenses are
payable by the Borrower to the Lender on demand, and in default of payment are
to bear interest at the Interest Rate.
5.8 NO PREJUDICE. Nothing in this Agreement is to prejudice or impair any other
right or remedy that the Lender may otherwise have with respect to the Loan or
any rights or remedies the Lender may have with respect to other loans that may
be made to the Borrower.
5.9 NO ASSIGNMENT. No party may assign or transfer its rights under this
Agreement, or any portion of the Loan, without the prior written consent of the
other parties.
5.10 ENUREMENT. This Agreement is binding upon and enures to the benefit of the
Borrower and the Lender and their respective successors and assigns.
5.11 CONFIDENTIALITY. All documents associated with this transaction are to be
confidential and the parties will not disclose such documents to any other
person except as may be required by law. Each party will use its reasonable
efforts to provide prior notice to the other parties of any such discloser.
5.12 TIME. Time is of the essence of this Agreement.
5.13 ENTIRE AGREEMENT; CONFLICT OF INSTRUMENTS. The Loan Document represent the
entire agreement between the parties and supersede any prior arrangements or
agreement, whether in writing or not, among the parties.
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5.14 COUNTERPARTS. The parties may deliver this Agreement in counterparts and by
facsimile transmission, with the same effect as if all parties had all signed an
original copy of the same agreement, and all counterparts are to be construed
together as one and the same agreement.
AS EVIDENCE OF THEIR AGREEMENT the parties have caused this Loan Agreement to be
executed and delivered as of the date first noted above.
VUMEE, INC.
Per: /s/ Michael Spiegel
------------------------------------------
Authorized Signatory
MLJP LLC
Per: /s/ Authorized Signatory
------------------------------------------
Authorized Signatory
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SCHEDULE "A"
PROMISSORY NOTE
June 29, 2012
TO: MLJP LLC (the "LENDER")
FOR VALUE RECEIVED, DATA PANGEA LLC. (the "BORROWER") acknowledges itself
indebted and promises to pay to, or to the order of, the Lender at the address
indicated above the sum of three hundred and fifty dollars ($350,000) (the
"PRINCIPAL SUM"), together with interest on the outstanding balance of the
Principle Sum from time to time at the rate equal to 12% PER ANNUM, both before
and after maturity, on September 1, 2013, subject to any restrictions on such
demand as set out in a Loan Agreement between the Lender and the Borrower dated
as of June 29, 2012. Interest shall be payable quarterly, in arrears, commencing
three months after the date of the promissory note.
If any payment is not made when required to be made in accordance with this
promissory note, interest is to be paid by the Borrower on such overdue amount,
including any accrued and unpaid interest, in the same manner as is paid on the
Principal Sum.
The Borrower waives presentment for payment, protest or notice of protest and
notice of dishonour of this promissory note.
DATED at _________________________, this 29th day of June, 2012.
DATA PANGEA LLC.
Per: __________________________________