EXHIBIT 10.81
EXTENSION OF
FINANCING AGREEMENT
THIS FINANCING AGREEMENT EXTENSION (THE "AGREEMENT") is entered into
this 13th day of July, 2003, by and between ULTRASTRIP SYSTEMS, INC., a Florida
corporation ("Debtor"), and XXXXXXX BROTHERS, INC., together with his successors
and assigns (collectively, the "Lender").
PRELIMINARY STATEMENTS:
A. The Lender desires to extend the loan (the "LOAN") to the Debtor of
$250,000 made in accordance with this Agreement.
B. The parties desire to execute that certain Balloon Promissory Note
of even date herewith (the "Note") with respect to the principal indebtedness,
together with all interest, costs, expenses and other amounts, due by the Debtor
to the Payee in connection with this Loan (collectively, the "OBLIGATIONS").
C. This Agreement, the Note, and all other documents relating to the
Loan shall be collectively referred to as the "LOAN DOCUMENTS".
D. The Lender has agreed to void the Warrant Agreement issued with the
prior Financing Agreement. The Lender accepts $25,000 in cash in lieu of the
warrants and will return the warrant agreement to UItraStrip.
Agreement:
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Debtor and Lender hereby agree as
follows:
1. REPRESENTATIONS, COVENANTS AND DEFAULT.
1.1. OBLIGATIONS OF THE BORROWER. The obligations of the
Borrower under this Agreement, the Note, and each of the Loan Documents are and
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement, the Note, and each of
the Loan Documents, as the case may be, under all circumstances whatsoever,
including, without limitation, the following circumstances:
(a) any lack of validity or enforceability of all or any of
terms or conditions of this Agreement, the Note, or any of the Loan Documents or
parts thereof;
(b) any amendment or waiver of or any consent to departure
from all or any of the terms or conditions of this Agreement, the Note, or any
of the Loan Documents;
(c) the existence of any claim, set-off, defense or other
rights which the Borrower may have at any time against the Lender or any other
person, whether in connection with this Agreement, the Note, any Loan Document
or any unrelated transaction;
(d) any breach of contract or other dispute between the
Borrower and the Lender or any other Person;
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(e) any delay, extension of time, renewal, compromise or other
indulgence or modification granted or agreed to by the Lender with or without
notice to or approval by the Borrower in respect of any of the Borrower's
indebtedness to the Lender under this Agreement, the Note or any of the Loan
Documents; or
(f) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
1.2 REPRESENTATIONS AND WARRANTIES. To induce the Lender to
make the Loan to the Borrower, the Borrower hereby represents and warrants that:
(a) The Borrower is duly organized, validly existing and in
good standing under the laws of the State of Florida.
(b) The Borrower has the corporate power to own its
properties, carry on its business as now conducted and enter into and perform
under this Agreement.
(c) The execution, delivery and performance of this Agreement,
the Note, and the other Loan Documents have been duly authorized by all
requisite corporate action and do not require the consent, license or other
authorization of any other person or entity.
(d) The execution, delivery and performance of this Agreement,
the Note, and the other Loan Documents will not result in breach or default
under the Borrower's articles of incorporation; by-laws or any other agreement
or contract to which the Borrower is a party or by which its properties are
bound and will not result in the creation or imposition of any lien or
encumbrance on any assets of the Borrower.
(e) This Agreement, the Note, and the other Loan Documents
constitute valid and legally binding obligations of the Borrower enforceable in
accordance with their respective terms, except as the enforcement of remedies
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or similar laws from time to time in effect.
(f) There is no litigation or governmental proceeding pending
or threatened against the Borrower or any of its assets.
(g) There has been no material adverse change in the
Borrower's business or financial condition as shown in the Borrower's financial
statements previously provided to Lender from the date thereof to the date of
execution of this Agreement.
(h) The Borrower has good title to all its assets, free of all
liens, encumbrances and restrictions except those reflected in the financial
statements of the Borrower referred to in Section 2.2(g) above.
(i) No event has occurred which would (or with notice or the
lapse of time, or both, would) constitute a breach, default or violation of any
law, regulation, order or agreement applicable to the Borrower or any of its
assets.
1.3 AFFIRMATIVE COVENANTS. The Borrower hereby covenants and
agrees that from the date hereof and until the later of the payment of all
Obligations or the termination of this Agreement, it will, unless the Lender
shall otherwise consent in writing:
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(a) Maintain its corporate existence, pay all its indebtedness
and taxes when due, and maintain adequate insurance.
(b) Furnish to the Lender such other information as the Lender
may reasonably request, and permit the Lender's representatives to visit the
Borrower's place of business, talk with the Borrower's officers and independent
accountants and inspect the Borrower's books and records.
1.4 NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees that from the date hereof and until the later of the payment in full of
all Obligations or the termination of this Agreement, it will not, without the
prior written consent of the Lender:
(a) Sell, lease, transfer or otherwise dispose of all or any
substantial part of its assets now owned or hereafter acquired to any person
other than in the ordinary course of the Borrower's business. Additionally, the
Borrower shall not enter into any other line of business other than as they
currently operate.
(b) Consolidate with or merge into any other person or permit
any other person to merge into it unless the Borrower shall be the surviving
corporation and after giving effect thereto no Default or Event of Default shall
have occurred and be continuing.
1.5 EVENTS OF DEFAULT. Upon the occurrence of any Event of
Default (as defined below), and at any time thereafter while such Event of
Default shall continue, the Lender may [in the case of any Event of Default
other than an event described in Sections 2.5(f) or (g) below] by written notice
to the Borrower:
(I) immediately terminate this Agreement; and/or
(II) immediately declare the principal of, and interest
accrued on, the Note forthwith due and payable, whereupon the same shall become
immediately due and payable, and/or provided, however, that upon the occurrence
of any event described in Sections 1.5 (f) or (g), the Lender hereunder shall
automatically and without notice terminate this Agreement, without any action on
the part of the Lender, and the principal of, and accrued interest on, the Note
and all other Obligations then outstanding, shall all become immediately due and
payable, both as to principal, interest and otherwise, without presentment,
demand, protest, or other notice of any kind, all of which are hereby expressly
waived, anything contained herein, or in the Note or any of the other Loan
Documents to the contrary notwithstanding. Upon the happening and continuance of
any Event of Default specified below, the Lender shall be permitted to proceed
to protect and enforce its rights under this Agreement and the other Loan
Documents, and each of them, and any of the other documents and instruments
executed and delivered in connection with this Agreement by such suits, actions
or special proceedings in equity or at law, or by proceedings in the office of
any board or officer having jurisdiction, either for specific performance of any
covenant or agreement contained herein or in aid or execution of any power
herein or therein granted or for the enforcement of any proper legal or
equitable remedy, as the Lender, being advised by counsel chosen by the Lender,
shall deem most effectual to protect and enforce such rights. In the enforcement
of any remedy described above, the Lender shall be entitled to xxx for, enforce
payment of and receive any and all amounts then or during any Event of Default
becoming or remaining due from the Borrower for principal, interest or otherwise
under any of the provisions of this Agreement, the Note or any of the other Loan
Documents, as the case may be, together with interest on overdue payments at the
default rate as provided in the Note and all costs and expenses of collection
and of all proceedings hereunder. The rights and remedies provided hereunder are
cumulative, and are not exclusive of any other rights, powers, privileges, or
remedies, now or hereafter existing, at law or in equity or otherwise.
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An "EVENT OF DEFAULT" shall mean any of the following events:
(a) Any representation or warranty made by the Borrower or in
connection with this Agreement or any of the Loan Documents shall prove to be
false or misleading in any material respect;
(b) The failure of the Borrower to pay, when due, any
principal of or interest on the Note, or to pay when due (whether by
acceleration, maturity or otherwise) any other sum payable to the Lender under
this Agreement or any of the other Loan Documents, or the failure of the
Borrower, or any of them, to pay, when due, any principal of or interest on any
other obligations or indebtedness of the Borrower, or any of them, owed to the
Lender, whether presently existing or from time to time hereafter created or
incurred, or to pay when due (whether by acceleration, maturity or otherwise)
any other sum payable to the Lender in respect of any such other obligations or
indebtedness now or from time to time owing to the Lender;
(c) Default in the performance or observance of any covenant
or agreement as set forth Sections 1.3 or 1.4 hereof;
(d) Default in the performance or observance of any other
covenant, condition or agreement made in this Agreement and such default is not
remedied within thirty (30) days after written notice thereof has been given to
the Borrower by the Lender;
(e) Default in the performance or observance of any covenant,
condition or agreement made in any of the other Loan Documents and such default
is not remedied within any applicable grace period provided therefor;
(f) The Borrower shall (1) voluntarily terminate operations or
apply for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of the Borrower, as the case may be,
or of all or of a substantial part of the assets of the Borrower, as the case
may be, (2) admit in writing its inability, or be generally unable, to pay its
debts as the debts become due, (3) make a general assignment for the benefit of
its creditors, (4) commence a voluntary case under Title 11 of the U. S. Code,
as amended, (5) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, (6) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under Title 11 of the U. S. Code, as amended, or (7) take any
corporate or other action for the purpose of effecting any of the foregoing;
(g) Without its application, approval or consent, a proceeding
shall be commenced, in any court of competent jurisdiction, seeking in respect
of the Borrower: the liquidation, reorganization, dissolution, winding-up, or
composition or readjustment of debt, the appointment of a trustee, receiver,
liquidator or the like of the Borrower, as the case may be, or of all or any
substantial part of the assets of the Borrower, as the case may be, or other
like relief in respect of the Borrower, as the case may be, under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts unless such proceeding is contested in good faith by the
Borrower or the Guarantor, as the case may be; and, if the proceeding is being
contested in good faith by the Borrower or the Guarantor, as the case may be,
the same shall continue undismissed, or unstayed and in effect, for any period
of 60 consecutive days, or an order for relief against the Borrower, as the case
may be, shall be entered in any involuntary case under Title 11 of the U.S.
Code, as amended;
(h) Final judgment for the payment of money shall be rendered
against the Borrower in excess of $100,000 if the same shall not be contested in
good faith and discharged within thirty (30) days;
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(i) Default with respect to any indebtedness of the Borrower
in an aggregate amount then due of $100,000 or more if the effect is to
accelerate such indebtedness or permit the holder thereof to cause such
indebtedness to become due prior to its stated maturity and such indebtedness
shall not be paid when due;
(j) Any material change occurs in the ownership of the
Borrower;
(k) The Lender shall determine that a material adverse
change has occurred in the financial condition of the Borrower from the
condition as heretofore most recently disclosed to the Lender; or
2. EFFECTIVE DATE, CONTROLLING LAW AND TERMINATION.
2.1 TERM OF AGREEMENT: This Agreement shall become effective
upon the date hereof and shall continue in full force and effect until all
Obligations are fully paid.
2.2 AMENDMENTS: No provision hereof shall be modified or
amended orally or by course of conduct but only by a written instrument
expressly referring hereto signed by all parties hereto.
2.3 COSTS AND EXPENSES: All costs and expenses, including
searches, filing fees and reasonable attorneys' fees incurred by the Lender in
administering this Agreement and in all efforts made to enforce payment, whether
through judicial proceedings or otherwise, or in defending or prosecuting any
actions or proceedings (including state, federal, bankruptcy, appellate, post
judgment and alternative dispute resolution proceedings) arising out of or
relating to the Lender's transactions with the Debtor, shall be paid for by the
Debtor on demand and until paid by the Debtor shall be added to and deemed part
of the Lender's loan to the Debtor.
2.4 SITUS OF AGREEMENT; VENUE: This Agreement and all
transactions thereunder shall be deemed to be consummated in the State of
Florida and shall be governed by and interpreted in accordance with the laws of
that State. The parties hereby irrevocably submit, for themselves and their
property, to the nonexclusive jurisdiction of the courts of the State of Florida
and the Circuit Court of the Eleventh Judicial Circuit in and for Xxxxxx County,
Florida and irrevocably waive any objection which either of them may have at any
time to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in any such court, irrevocably waive any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum and further irrevocably waive the right to
object, with respect to such claim, suit, action or proceeding brought in any
such court, that such court does not have jurisdiction over such party.
2.5 SEVERABILITY: If any part or provision of this Agreement
is invalid or in contravention of any applicable law or regulation, such part or
provision shall be severable without affecting the validity of any other part or
provision of this Agreement.
2.6 Notices: All notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
(including telex, telefax and telegraphic communication) and shall be (as
elected by the person giving such notice) hand delivered by messenger or courier
service, telecommunicated, or mailed (airmail if international) by registered or
certified mail (postage prepaid), return receipt requested, addressed to:
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Debtor:
------
UItraStrip Systems, Inc.
0000 X.X. Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Tel: 000 000-0000
Fax: 000 000-0000
Lender:
------
Xxxxxxx Brothers, Inc
00000 XX Xxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxx 00000
or to such other address as that party may designate by notice complying with
the terms of this Section 2.6. Each such notice shall be deemed delivered: (a)
on the date delivered if by personal delivery; (b) on the date telecommunicated
if by telegraph; (c) on the date of transmission with confirmed answer back if
by telex, telefax or other telegraphic method; and (d) on the date upon which
the return receipt is signed or delivery is refused or the notice is designated
by the postal authorities as not deliverable, as the case may be, if mailed.
2.7 ENTIRE AGREEMENT: This Agreement, together with the Note,
shall represent the entire understanding and agreement between the Debtor with
respect to the subject matter hereof, and supersedes all other negotiations,
understandings and representations (if any) made by and between such parties. If
the terms of this Agreement should conflict with any of the terms the Note, then
the terms of the Note shall be interpreted as being paramount, superior and
controlling and the terms of this Agreement shall be interpreted as being
subordinate to the terms of the Note.
2.8 LENDER'S RIGHTS; ACTION BY LENDER: The parties agree that
the Debtor may not assign this Agreement but that the Lender may assign this
Agreement upon written notice to Debtor. This Agreement shall be binding upon
the Debtor, its successors and assigns, and all rights against the Debtor
arising under this Agreement shall be for the sole benefit of the Lender, its
respective successors and assigns, all of whom shall be entitled to enforce
performance and observance of this Agreement to the same extent as if they were
parties hereto.
2.9 WAIVER OF JURY TRIAL. The Maker and the Payee do hereby
each and both expressly waive any right which either may have to a jury trial as
to any actions which may be brought concerning this Promissory Note, or any
other loan document relating hereto.
[SIGNATURES SET FORTH ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the undersigned parties have entered into this
Agreement on the date specified above.
WITNESSES: DEBTOR:
UItraStrip Systems, Inc.,
a Florida corporation
[ILLEGIBLE] By:
--------------------------- Its:
[ILLEGIBLE]
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[ILLEGIBLE]
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[ILLEGIBLE]
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EXHIBIT A
Copy of the Promissory Note
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