f8k090809ex10ii_celsius.htm


     

    Exhibit
10.2

    


    LOAN
AGREEMENT

    


    This Loan and Security Agreement
(hereinafter called "Agreement") is between CELSIUS HOLDINGS, INC., a
Nevada Corporation, authorized to do business in Florida as  CELSIUS PRODUCTS HOLDINGS,
INC. (“Borrower”), whose address is 140 N.E. 4th
Avenue, Suite C, Delray Beach, Florida 33483 and LUCILLE SANTINI, (hereinafter
called "Lender").

    


    1.       Refinance of Existing
Loan. Lender and Borrower hereby agree to refinance that certain
promissory note dated July 19, 2009 in the amount of $620,885.44 (the “July 2009
Note”). In connection with such refinancing, Borrower shall execute and deliver
to Lender a new promissory note in the original principal sum of SIX HUNDRED
FIFTEEN THOUSAND AND NO/100THS DOLLARS ($615,000.00) in the form attached as
Exhibit A hereto (the “Note”) and shall issue Lender a check in the amount of
$3,699.09 representing the balance due on the July 2009 Note (the “Cash
Payment”). Lender shall surrender and exchange the July 2009 Note for the Cash
Payment and the new Note issued pursuant to this Agreement. Upon execution and
delivery of the new Note and the Cash Payment, the July 2009 Note shall be
deemed cancelled.

    


    2.           Representations, Warranties
and Covenants of Borrower.  Borrower expressly represents,
warrants and covenants to Lender as follows:

    


    (a)           Borrower
represents and warrants to Lender that all financial statements, income tax
returns and credit information delivered by Borrower to Lender accurately
reflect the financial condition and operations of Borrower at the times and for
the periods therein stated.  So long as this Agreement is in force and
effect, Borrower agrees to deliver to Lender within one hundred twenty (120)
calendar days after the end of each of Borrower’s fiscal years, a complete and
accurate copy of Borrower’s consolidated audited financial statements (with
notes), prepared by an independent certified public accountant acceptable to the
Lender (“CPA”), including statements of cash flow, and a  balance
sheet and statement of income, together with all schedules, all prepared in
accordance with generally accepted accounting principles (“GAAP”). Borrower
shall provide Lender with a copy of its consolidated federal income tax return
within fifteen (15) days of filing (including all schedules and extensions).
Borrower shall also provide internally prepared condensed unaudited monthly
statements without notes but otherwise meeting all the requirements of the
annual statements no later than thirty (30) days after each month end and
internally prepared condensed quarterly financial statements with partial notes
(which are included in the Form 10-Q) but otherwise meeting all the requirements
of the annual statements no later than forty five (45) days after the end of
each fiscal quarter end or such other date as requested by Lender for statements
other than the quarterly statements, acceptable to Lender and its accountants as
well as financial statements at such other times as requested by
Lender.

    


    (b)           Pursuant
to its terms, the outstanding balance of the Note is immediately convertible
into shares of the Borrower’s Common Stock at the request of the
Lender.

    


    (c)           The
Borrower has agreed to effect the registration of the shares of Common Stock
issuable upon the conversion of the Note for resale by the holders thereof under
the Securities Act of 1933 (as amended, and the rules and regulations
promulgated thereunder, the “Securities Act”), pursuant to a Registration Rights
Agreement in the form attached hereto as Exhibit B (the “Registration Rights
Agreement”).

    


    (d)           
Borrower has the requisite corporate power and authority to enter into and
perform its obligations under the Note and loan documents, including, without
limitation, this Agreement and the Registration Rights Agreement, and delivery
of the Common Stock Issued at Conversion (as such term is defined in the Note)
to the Lender in accordance with the terms hereof and thereof.  All
corporate action on the part of Borrower necessary for the authorization,
execution and delivery of, and the performance by such Borrower of its
obligations under the Note and such loan documents to which such Borrower is a
party has been taken, and no further consent or authorization of any Person
[including, without limitation, any of the Borrowers' respective directors or
shareholders or any governmental authority (other than such approval as may be
required under the Securities Act and applicable state laws in respect of the
Registration Rights Agreement)] is required under any organizational document,
contract to which a Borrower is a party, any governmental requirement or
otherwise.  Each board of directors of the Borrower has determined
that the sale and issuance of the Common Stock Issued at Conversion and the
consummation of the transaction contemplated hereby and by the Note and other
loan documents, are in the best interests of the Borrower.

     

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    
 

    3.           Repayment; Conversion of
Note.

    


    (a)         This
loan facility is a non-revolving line of credit. Prior to September 1, 2011,
Borrower may not repay in cash any principal amount due under the Note.
Thereafter, Borrower is permitted to repay in cash any principal amount due with
a 10 days prior notice.

    


    (b)         Lender
has the right to at any time convert any part of or the entire outstanding
principal amount of the Note into Borrower’s Common Stock pursuant to the terms
of the Note; provided that, Lender or its affiliates shall not engage in any
transaction selling Common Stock or other derivatives of the Common Stock within
90 days of Lender executing a conversion of any outstanding principal amount of
the Note to Common Stock.

    


    4.           Defaults.  The
occurrence of any of the following events shall constitute a default
hereunder:

    


    (a)         the
Borrower shall default in the payment of principal of or interest on the Note or
any other obligation to Lender as and when the same shall be due and payable
and, in the case of an interest payment default, such default shall continue for
five (5) Business Days after the date such interest payment was due, or the
Borrower shall fail to perform or observe any other covenant, agreement, term,
provision, undertaking or commitment under the Note or this Loan Agreement which
remains uncured for ten (10) Business Days after the delivery to the Borrower of
written notice that the Borrower is in default hereunder or
thereunder;

    


    (b)         The
breach of or failure to perform promptly any obligation or covenant set forth in
this Agreement or the Note unless otherwise approved in advance by
Lender.

    


    (c)         The
suspension of business, insolvency, failure generally to pay debts as they
became due, or the commission of any act constituting or resulting in a business
failure, in each case on the part of the business of Borrower; the concealment
or removal of any substantial portion of Borrower’s property with the intent to
hinder, delay or defraud any one or more creditors, or the making of any other
transfer which is fraudulent or otherwise voidable under the Bankruptcy Code or
other applicable federal or state law; the existence or creation of any lien,
including without limitation any tax or judgment lien, upon any substantial part
of Borrower’s property; an assignment for the benefit of creditors; the
commencement of any proceedings by or against Borrower (under the Bankruptcy
Code or otherwise) seeking to adjudicate it bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or seeking the appointment of a receiver, trustee or custodian for
Borrower or for the Collateral or a substantial part of the property
of  Borrower; or the institution by Borrower or any other person or
entity of any liquidation, dissolution or reorganization proceedings with
respect to Borrower;

    


    (d)         The
failure to effectively and promptly discharge, stay or indemnify against, to
Lender's satisfaction, any lien or attachment against any of Borrower's property
or the Collateral;

    


    (e)         Any
representation or warranty contained herein or in any other document delivered
by or on behalf of Borrower to Lender shall be false or misleading when
made;

    


    5.           Remedies.

     

    (a)          Upon
the occurrence of any default under this Agreement, Lender is authorized in its
discretion to declare any or all of the indebtedness to be immediately due and
payable without demand or notice to Borrower, and may exercise any one or more
of the rights and remedies granted pursuant to this Agreement

    


    (b)         This
Agreement shall not prejudice the right of Lender at its option to enforce the
collection of any indebtedness or any other instrument executed in connection
with this transaction, by suit or in any other lawful manner.  No
right or remedy is intended to be exclusive of any other right or remedy, but
every such right or remedy shall be cumulative to every other right or remedy
herein or conferred in any other agreement or document for the benefit of
Lender, or now or hereafter existing at law or in equity.

     

    9.           Miscellaneous.

    


    (a)         This
Agreement shall terminate when the indebtedness has been fully, finally and
irrevocably paid and all other obligations of Borrower to Lender have been
performed in full.  Prior to such termination, this shall be a
continuing agreement.

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    
 

    (b) THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA IN ALL
RESPECTS, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, EXCEPT TO
THE EXTENT THE LAWS OF ANOTHER JURISDICTION ARE MANDATORILY APPLICABLE.
BORROWER AND LENDER CONSENTS TO
THE NON-EXCLUSIVE PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF TENNESSEE
AND THE FEDERAL COURTS LOCATED IN THE MIDDLE DISTRICT OF TENNESSEE, COLUMBIA
DIVISION SO THAT EITHER MAY SUE THE OTHER IN LAWRENCE OR MAURY COUNTY, TENNESSEE
TO ENFORCE THIS AGREEMENT. BORROWER AND LENDER AGREE NOT TO CLAIM THATLAWRENCE
OR MAURY COUNTY, TENNESSEE, IS AN INCONVENIENT PLACE FOR TRIAL. AT LENDER'S
OPTION, THE VENUE (LOCATION) OF ANY SUIT TO ENFORCE THIS AGREEMENT MAY BE IN
LAWRENCE OR MAURY COUNTY,TENNESSEE. BORROWER HEREBY IRREVOCABLY AGREES AND
CONSENTS THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR
UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO BORROWER AND/OR BORROWER AT THE ADDRESS PROVIDED FOR
NOTICES UNDER THIS AGREEMENT.

    


    (c)
BORROWER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
AND ALL RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION
(INCLUDING BUT NOT LIMITED TO) ANY CLAIMS, CROSS-CLAIMS OR THIRD PARTY CLAIMS
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREIN. BORROWER ALSO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE EXTENT PERMITTED BY LAW,
ANY RIGHT THEY MAY HAVE TO ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
BORROWER ACKNOWLEDGES THAT THE LENDER HAS BEEN INDUCED TO ENTER INTO THIS LOAN,
INCLUDING THIS AGREEMENT, BY, INTER ALIA, THE PROVISIONS OF THIS
PARAGRAPH.

    


    (d)           This
Agreement shall inure to the benefit of Lender, its successors and assigns and
to any other holder who derives from Lender title to or an interest in the Note,
and shall be binding upon Borrower, its successors and assigns.

    


    (e)           In
case any one or more of the provisions of this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had not been included.

    


    (f).           The
Borrower agrees to cooperate promptly with the Lender and its agent in the
correction or completion of the loan closing documents if deemed necessary or
desirable by Lender.  Borrower understands that this may include
correction or execution of a new note to reflect the agreed terms.

    


    (f)           Any
provision to the contrary notwithstanding contained herein or in the Note,
neither Lender nor any other holder of the Note shall be entitled to receive or
collect, nor shall Borrower be obligated to pay, interest on the Note in excess
of the maximum rate of interest at the particular time in question, if any,
which, under applicable law, may be charged to Borrower (herein the "Maximum
Rate"), provided that the Maximum Rate shall be automatically increased or
decreased, as the case may be, without notice to Borrower from time to time as
of the effective time of each change in the Maximum Rate, and if any provision
herein or in the Note or in such other instrument shall ever be construed or
held to permit the collection or to require the payment of any amount of
interest in excess of that permitted by applicable law, the provisions of this
paragraph shall control and shall override any contrary or inconsistent
provision herein or in the Note or in such other instrument.  The
intention of the parties being to conform strictly to the usury limitations
under applicable law, the Note and this Agreement shall be held subject to
reduction to the amount allowed under said applicable law as now or hereafter
construed by the courts having jurisdiction.

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    
 

    (g)           All
notices pursuant to this Loan Agreement shall be in writing and shall be
directed to the addresses set forth below or such other address as may be
specified in writing, by certified or registered mail, return receipt requested
by the party to which or whom notices are to be given.  Notices shall
be deemed to be given upon sender’s obtaining a receipt (or refusal of receipt)
from the U.S. Postal Service for such certified or registered mail delivery,
upon personal delivery to an officer of the Borrower, or the day following
prepaid delivery to a recognized overnight commercial carrier.

    


    (h)           The
singular used herein shall include the plural.

    


     [balance
of this page left intentionally blank]

     

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    
 

    IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the date written
below.

    


    Dated:  September
8, 2009.

    


     

    
      	

              Signed
      sealed and delivered

              
                in
      the presence of:

              

            	 	

              BORROWER:

            
	 	 	 
	

              /s/
      Anthony Rocco

            	 	

              CELSIUS
      HOLDINGS, INC. a Nevada corporation,

               authorized
      to do business in Florida as 

              CELSIUS
      PRODUCTS HOLDINGS, INC.

            
	 	 	140 N.E. 4th
      Avenue, Suite C
	/s/ Janet
      Linnell 	 	

              Delray
      Beach, Florida 33483

            
	 	 	 
	 	 	
              By: /s/
      Jan
      Norelid              
      

              Name:
      Jan
      Norelid  

              As its:
      Vice
      President

            


    

     

     

    


                 (Corporate
Seal)

    


    STATE OF
FLORIDA             )

                                                  ss:

    COUNTY
OF  PALM
BEACH           )

    


    The foregoing instrument was
acknowledged before me this September 8, 2009, by Jan Norelid as Vice President
of CELSIUS HOLDINGS, INC., a Nevada corporation, authorized to do business in
Florida as CELSIUS PRODUCTS HOLDINGS, INC., on behalf of the corporation. He is
personally known to me or has produced a driver’s license as
identification.

    


         /s/
Sandy
Telsaint   9/8/09                  


    Notary
Public, State of Florida

    My
Commission Expires:  July 27, 2012

    {Seal}

    LENDER:

    


    LUCILLE
SANTINI

    


    


    By: /s/ Lucille
Santini                                   


    


    Address:
1198 North Locust Ave, Suite 102

    Lawrenceburg,
TN 38464

    


    STATE
OF            )
Tennessee

                                          ss:

    COUNTY
OF                     )
Lawrence

    


    The foregoing instrument was
acknowledged before me this September 30th, 2009, by LUCILLE SANTINI, on her own
behalf. She is personally known to me or has produced a Tennessee driver’s
license as identification.

     

       /s/ Tammy
L
Dewberry                   


    Notary
Public, State of Tennessee

    My
Commission Expires:   03-22-2011

    {Seal}

     

     

    5