June 6, 2019 Pledge Agreement with the Company, Phytochem Technologies, Inc., Kahn Family Limited PT II and Brenda Hamilton
EXHIBIT E: PLEDGE AGREEMENT
This Agreement (the “Pledge Agreement”) is made and effective as of the day set forth on the signature page hereto by and between NutraLife BioSciences, Inc., a Florida corporation (“NutraLife”), PhytoChem Technologies, Inc. (“PhytoChem”), a Florida corporation (NutraLife and PhytoChem are collectively referred to herein as the “Company”), Brenda Hamilton, an individual (the “Pledgor”) and Kahn Family Limited PT II (the “Purchaser”) and is effective as of the day set forth on the signature page hereto. The Company, the Pledgor and the Purchaser are referred to herein collectively as the “Parties”, or individually as a “Party”.
WHEREAS, the Company obtained certain rights to commercialize and monetize certain technology and phytoextractor equipment known as the Ennea Processor (“Ennea” or “Ennea Processor”) pursuant to an agreement by and between Owen J. Morgan (“Morgan”) and the Company dated February 4, 2019 (the “Morgan Agreement”);
WHEREAS, the Company requires capital to manufacture, purchase, monetize and commercialize the Ennea Processors and the Purchaser has agreed to purchase a Convertible Promissory Note (the “Note”) which shall bear interest (the “Interest”) at the rate of eight and one half percent (8.5%) per annuum (the “Interest”) in the principal amount of $1,000,000 (“Principal” or the “Principal Amount”);
WHEREAS, the first four of the Ennea Processors that the Company commercializes and/or monetizes pursuant to the Morgan Agreement shall serve as collateral (“Collateral Processors”) for the Principal Amount pursuant to the terms of the Note and Security Agreement (the “Security Agreement”) attached to the Investment Agreement as Exhibits B and C;
WHEREAS, in addition to the Collateral Processors, Interest and Securities paid by the Company to the Purchaser as consideration for the Note, the Purchaser requested additional security (the “Additional Collateral”) for the Principal Amount in the form of a mortgage on real property;
WHEREAS, the Pledgor agreed to provide a mortgage lien covering certain real property (the “Real Property”) as set forth in the mortgage (the “Mortgage”) attached as Exhibit F to the Investment Agreement as the Additional Collateral. In exchange for providing the Additional Collateral, the Company shall pay to the Pledgor the consideration set forth in this Pledge Agreement and in the Pledgor Royalty Agreement attached as Exhibit G to the Investment Agreement; and
WHEREAS, the Mortgage will be reduced by all consideration paid to the Purchaser by the Company under the Transaction Documents.
NOW THERFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, receipt of which is hereby acknowledged, the parties to this Pledge Agreement agree as follows:
ARTICLE 1. RECITALS.
ARTICLE 1.1 The above recitals are true and correct and made a part hereof.
ARTICLE 2. DEFINITIONS.
ARTICLE 2.1 The Investment Agreement, Note, Purchaser Royalty Agreement, Security Agreement, Pledgor Royalty Agreement and the Mortgage are referred to as the “Ancillary Agreements”. This Pledge Agreement and the Ancillary Agreements shall be referred to collectively as the “Transaction Documents”.
ARTICLE 3. REPRESENTATIONS OF THE COMPANY.
ARTICLE 3.1 To induce Pledgor to enter into this Pledge Agreement and the Mortgage, the Company represents and warrants to the Pledgor and Purchaser that the Company will timely pay all amounts owing to the Purchaser, whether for Royalty Payments, Principal, Interest, Fees, Expenses, Premiums, Indemnities or otherwise, and that it will delivery full and timely payment of all and any amounts due and/or which may become due to the Purchaser from the Company from time to time in connection with the Transaction Documents without limitation. Purchaser understands that all consideration delivered to the Purchaser by the Company pursuant to the Transaction Documents will be applied to the Principal Amount and as a result, the Mortgage will be reduced by any and all payments of consideration of any type made by the Company to the Purchaser under the Transaction Documents.
ARTICLE 4. PLEDGE AND CONSIDERATION TO PLEDGOR
ARTICLE 4.1 REAL PROPERTY. Based upon the representations of the Company and the Purchaser that they will perform and comply with their obligations an duties under the Transaction Documents, the Pledgor shall provide the Purchaser with the Mortgage which shall secure the Company’s payment of the Principal Amount pursuant to the Transaction Documents. The Principal Amount shall be secured by the real property located at 1576 Fan Palm Road Boca Raton, Florida (“Real Property Collateral”) as set forth in the Mortgage. The Mortgage will be reduced from time to time by any and all payments made by the Company to the Purchaser under the Transaction Documents.
ARTICLE 4.2 CONSIDERATION FOR PLEDGE. In exchange for providing the Real Property Collateral, Pledgor shall receive: (i) 500,000 shares of the Company’s common stock, $.0001 par value per share (the “Common Shares”) which shall be issued upon execution hereof, (ii) commencing on December 5, 2019, monthly payments equal to the interest paid by the Company to the Borrower under the Note accruing from the time of the Purchaser’s delivery of the Principal Amount to the Company until the Note is paid in full, and (iii) eight and one half percent (8.5%) of the revenue generated from the Collateral Processors (the “Royalty”) while the Principal Amount is outstanding and five percent (5%) thereafter on the first two (2) machines commercialized and/or monetized by the Company as set forth in the Pledgor Royalty Agreement (the “Pledgor Royalty Agreement”) attached to the Investment Agreement as Exhibit G.
ARTICLE 4.3 ISSUANCE OF THE SECURITIES. The Common Shares issued to Pledgor pursuant to Article 4 hereof upon issuance will be duly authorized, validly issued, fully paid and nonassessable, free and clear of all rights, liens and encumbrances.
ARTICLE 4.4 FULL RECOURSE NOTE. The Note granted by the Company to the Purchaser is a full recourse promissory note and in the event of a default by the Company of the Note, the Purchaser shall have full recourse to all the assets of the Company. In the event of a default by the Company, the Purchaser must first proceed against and exhaust all remedies against the Company and its assets prior to proceeding against the Mortgage and/or commencing an action to foreclose the Mortgage to recover the difference between the then outstanding Principal Amount and any and all consideration of any nature paid by the Company to the Purchaser under the Transaction Documents.
ARTICLE 4.5 EXTENSION AND TERMINATION. The terms including payment due dates and Maturity Dates of the Note may not be extended by the Purchaser and the Company without the express written consent of the Pledgor. In the event that the Note is amended or modified including to extend a payment due date or the Maturity Date, without Pledgor’s written consent, then Pledgors obligation to provide security under this Pledge Agreement shall automatically cease and the Mortgage shall be deemed satisfied and released in full as security for the Principal Amount of the Note and the Purchaser will immediately record with the Palm Beach County Property Appraiser’s Officer, a Satisfaction of the Mortgage releasing the Purchaser’s lien on the Real Property.
ARTICLE 5. THE NOTE & COLLATERAL PROCESSORS.
ARTICLE 5.1 COLLATERAL PROCESSORS AS SECURITY. A condition precedent to the execution of this Pledge Agreement is that the Principal Amount of the Note be secured by the Collateral Processors as set forth in the Security Agreement. The Principal Amount of the Note is a direct debt obligation of the Company and is secured by a security interest in the Collateral Processors and the other assets of the Company. The Security Agreement will not be amended, and the Collateral as defined in the Security Agreement shall not be modified or released without the express written consent of the Pledgor. The Company will not sell or offer to sell or otherwise transfer or grant or allow the imposition of a lien or security interest upon the Collateral as defined in the Security Agreement or use any portion thereof in any manner inconsistent with the Security Agreement or with the terms and conditions of any policy of insurance thereon. The Company will not sell or offer to sell or otherwise transfer or grant or allow the imposition of a lien or security interest upon the any of its other assets while the Principal is outstanding or use any portion thereof in any manner inconsistent with this Pledge Agreement or with the terms and conditions of any policy of insurance thereon. In the event that the Security Agreement is amended or modified without Pledgor’s written consent, the Mortgage shall be deemed satisfied and released in full as security for the Principal Amount of the Note and the Purchaser will immediately record with the Palm Beach County Property Appraiser’s Officer, a Satisfaction of the Mortgage releasing the Purchaser’s lien on the Real Property.
ARTICLE 6. COVENANTS.
ARTICLE 6.1 The Company agrees in general to indemnify Pledgor against all losses, claims, demands, liabilities and expenses of every kind caused by Pledgor’s entry into this Pledge Agreement and the Mortgage. The Company further agrees that while the Mortgage is outstanding not to permit any lien on its assets and that the Company not to sell, hypothecate or otherwise dispose of, nor permit the transfer by operation of law of, any of its assets until such time as the Purchaser has recorded with the Palm Beach County Property Appraiser’s Officer, a Satisfaction of the Mortgage releasing the Mortgage on the Real Property.
ARTICLE 7. CONVERSION OF PRINCIPAL AMOUNT BY PURCHASER.
ARTICLE 7.1 Under the terms of the Note, the Purchaser may at any time while the Note is outstanding, convert the amount of outstanding Principal and accrued Interest due under the Note into the Company’s Common Stock, $.0001 par value per share (the “Common Stock”) at the price of $1.00 per share. Should the Purchaser exercise its right to convert the Note into the Common Stock then the Real Property Collateral shall be released as security for the Principal Amount and the Purchaser will record with the Palm Beach County Property Appraiser’s Officer, a Satisfaction of the Mortgage releasing the Purchaser’s lien on the Real Property.
ARTICLE 8. DEFAULT OF THE NOTE.
ARTICLE 8.1. DEFAULT. A “Default” shall mean that the Company has failed to make any payment required under the Note, within fifteen (15) days after the date the payment is due.
ARTICLE 8.2 PRIORITY. If after the exhaustion of all other remedies including enforcement of the lien against the Collateral Processors and collection of all amounts due from the Company, there remains a Default, then the Purchaser shall provide written notice to Pledgor of the default (“Notice of Default”) and Pledgor shall have the option but not the obligation to cure the Default. In such event, the amounts paid by Pledgor shall bear interest at the highest rate allowed under Florida law.
ARTICLE 8.3 INTEREST IN THE EVENT OF DEFAULT. So long as the Company is in default of its obligations under the Note, then the Company shall pay Pledgor interest on the amounts outstanding under the Note at a rate of ten percent (10%) per annum.
ARTICLE 8.4 PLEDGOR’S LIABILITY. Under no circumstances shall the Mortgage secure more than the Principal Amount minus all consideration of any nature paid by the Company to the Purchaser under the Transaction Documents.
ARTICLE 8.5 COLLECTION. If the Company defaults on its obligations under the Note, this Pledge Agreement or any of the other Transaction Documents, the Company shall reimburse Pledgor on demand for (i) payments made by Pledgor to Purchaser to cure a Default by the Company under the Investment Agreement and/or Note, and (ii) all costs and expenses, including attorneys’ fees and disbursements that Pledgor incurs in exercising any right, power, or remedy provided by this Pledge Agreement, the Ancillary Documents or by law or defending any action arising out of this Pledge Agreement or the Ancillary Documents. Additionally, in the event of a Default by the Company, all costs incurred and paid by Pledgor including any amounts Pledgor pays to cure a Default by the Company of the Note will bear interest at the highest rate allowed under Florida law.
ARTICLE 9. RELEASE OF COLLATERAL UPON SATISFACTION OF NOTE.
ARTICLE 9.1 Simultaneously with the Purchaser’s receipt of consideration from the Company with a value equal to the Principal Amount pursuant to the Transaction Documents, the Company will record with the Palm Beach County Property Appraiser’s Officer, a Satisfaction of the Mortgage signed by the Purchaser releasing the Purchaser’s lien on the Real Property.
ARTICLE 10. WAIVER OF CONFLICTS.
ARTICLE 10.1 The Company and the Purchaser each acknowledge that the Pledgor, Brenda Hamilton and her law firm, Hamilton & Associates Law Group, P.A has in the past performed, and may continue to perform, legal and/or consulting services for the Company in connection with the Transaction Documents and the matters and transactions described therein as well as in matters unrelated to the Transaction Documents. Accordingly, the Company and Purchaser each hereby acknowledge that they have been advised by Brenda Hamilton & Hamilton & Associates Law Group, P.A. to seek the advice of independent legal counsel in connection with the Transaction Documents and transactions contemplated thereby including the Pledge Agreement, Mortgage and Pledgor Royalty Agreement in which Brenda Hamilton is a Party. Additionally, the Company and Purchaser each acknowledge that they have had an opportunity to ask for information relevant to this disclosure and has consulted with independent legal counsel or has had the opportunity to do so and gives its informed consent to Brenda Hamilton & Hamilton & Associates Law Group, P.A. representation of and/or performance of services for the Company in the connection with the Transaction Documents and transactions contemplated thereby.
ARTICLE 11.1 NOTICES. Any and all notices or other communications or deliveries to be provided by the parties shall be delivered by facsimile, sent by a nationally recognized overnight courier service, addressed to the Company, at the addresses set forth on the signature page hereto or such other address or facsimile number as the Company may specify for such purposes by notice to the Purchaser delivered in accordance with this Article.
ARTICLE 11.2 ABSOLUTE OBLIGATION. Except as expressly provided herein, no provision of this Pledge Agreement shall alter or impair the obligation of the Company to pay all amounts due to Purchaser under the Note, which is absolute and unconditional. The Note is a direct debt obligation of the Company.
ARTICLE 11.3 GOVERNING LAW AND JURISDICTION. This Pledge Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to principles of conflict law applicable to contracts made and to be performed with such state. Each of the parties hereto accepts for itself to the jurisdiction of Palm Beach County Florida and irrevocably consents to such jurisdiction in any proceedings and waives any objection to venue laid therein. Any controversy or claim arising out of or relating of this Pledge Agreement shall be settled by binding arbitration administered by the American Arbitration Association and judgment on the award entered in any court having jurisdiction. The arbitration proceedings shall be conducted before a panel of three neutral arbitrators in Palm Beach County, Florida all of whom shall be members of the bar of the state of Florida, actively engaged in the practice of law for at least ten (10) years. Either Party hereto may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy otherwise resolved. Either Party may, without waiving any remedy under this Pledge Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitral tribunal’s determination of the merits of the controversy. Each party shall bear its own costs, expenses and attorney fees and an equal share of the arbitrators’ and administrative fees of arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence content or results of any arbitration hereunder without the prior written consent of the Parties. All documents, testimony and records shall be received, heard and maintained by the arbitrators in secrecy, available for the inspection only of the Parties to this Pledge Agreement and their respective attorneys and their respective experts who shall agree in advance and in writing to receive all such information confidentially and to maintain such information in secrecy until such information shall become generally known. In consideration for and as a material condition of this Pledge Agreement, each Party agrees that final and binding arbitration is the exclusive means for resolving any claim or controversy arising out of or related to this Pledge Agreement. This Pledge Agreement is a waiver of all rights the Parties may have to a civil court action. Accordingly, only an arbitrator, not a judge or jury, will decide the dispute, although the arbitrator has the authority to award any type of relief that could otherwise be awarded by a judge or jury.
ARTICLE 11.4 SENIORITY. The Company shall not incur any indebtedness senior to the Note while it remains outstanding and shall not encumber the Collateral Processors with any interest senior to the Note. If action is instituted to collect on the Note, the Company shall all pay all costs and expenses of Pledgor related thereto, including attorney’s fees, incurred in connection with such action.
ARTICLE 11.5 BANKRUPTCY. The Company’s obligations hereunder shall not be influenced, affected or diminished by any composition of debts, winding up, bankruptcy, as the case may be, of the Company, including any scheme or arrangement approved by any court or other compromise or arrangement made by the Company. The Company undertakes not to claim in such cases in competition with the Purchaser or Pledgor and not to claim from the Pledgor or Purchaser any amount received by the Pledgor or Purchaser in this way or in any other way for any reason whatsoever. The Company shall not claim any debt or payment or enter proof thereof in any Bankruptcy or winding-up proceedings or in any other arrangement or compromise with respect to the Company, until such time as the Pledgor and Purchaser shall receive in full all the amounts due or which may become due to the Purchaser and/or Pledgor from the Company as a result of the Ancillary Agreements or this Pledge Agreement.
ARTICLE 11.6 SEVERABILITY. If any provision of this Pledge Agreement is invalid, illegal or unenforceable, the balance of this Pledge Agreement shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates applicable laws governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum permitted rate of interest. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Note as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of the Note, and the Company (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Purchaser or Pledgor.
ARTCLE 11.7 HEADINGS. The headings contained herein are for convenience only, do not constitute a part of this Pledge Agreement and shall not be deemed to limit or affect any of the provisions hereof.
ARTICLE 11.8 PAYMENT. All payments by the Company shall be made in lawful money of the United States of America at such place as the Pledgor hereof may from time to time designate in writing to the Company.
IN WITNESS WHEREOF, the Parties hereto have executed this Pledge Agreement on June 6, 2019.
|NUTRALIFE BIOSCIENCES, INC.||KAHN FAMILY LIMITED PT II|
|Edgar Ward, Chief Executive Officer||(Signature)|
|PHYTOCHEM TECHNOLOGIES, INC.||(Print Name)|
|Edgar Ward, Chief Executive Officer|
|Address for Notice:||Address for Notice:|
|NutraLife Biosciences, Inc.|
|Attn: Edgar Ward, Chief Executive Officer|
|6601 Lyons Rd. L-6|
|Coconut Creek, Fl. 33073||Phone:|
|Brenda Hamilton, an individual as Pledgor|
|Address for Notice:|
|1576 Fan Palm Road|
|Boca Raton Fl 33432|
EXHIBIT F. MORTGAGE
This mortgage is made on June 5, 2019 by and between Brenda Hamilton of 1576 Fan Palm Road Boca Raton Florida 33432, referred to below as Mortgagor, to Kahn Family Limited PT II of ______, referred to below as Mortgagee.
Subject to the terms of that certain Pledge Agreement of even date herewith by and between the Mortgagor, Mortgagee and NutraLife BioSciences, Inc., a Florida corporation (the “Company”), the Pledgor does hereby grant and convey to the Mortgagee an interest in the following-described real estate, situated, lying and being in Boca Raton, Palm Beach County, State of Florida to secure the payment of the Principal Amount set forth in that certain Convertible Promissory Note of even date herewith in the amount of $1,000,000 made by the Company payable to the order of the Mortgagee.
Together with the tenements, hereditaments, and appurtenances belonging or appertaining to it.
The Mortgagor shall and will warrant, and by these presents forever defend, the premises to the Mortgagee, the Mortgagee’s heirs and assigns against the lawful claims of all and every person or persons.
The Mortgagor covenants to keep perfect the security hereby given; to keep the improvements upon the mortgaged property insured for a sum not less than $1,000,000 dollars; to pay all taxes, assessments and charges which may or might become liens superior to that created by this Mortgage.
The Mortgagor agrees that the indebtedness covered by this Mortgage shall be paid by the Company according to the terms of the Note which is a Full Recourse Promissory Note and the Principal Amount secured by this Mortgage will be reduced by (i) all principal and interest paid by the Company to Purchaser pursuant to the Note, and (ii) all Royal Payments paid by the Company to the Purchaser under the Purchaser Royalty Agreement.
|Brenda Hamilton as Mortgagor|