EXHIBIT 10.6
REVOLVING CREDIT AGREEMENT
September 15, 1998
CyBear, Inc. ("CyBear"), promises to pay to Andrx Corporation, a
Florida corporation ("Andrx") or order, at 0000 XX 00 Xxxxxx, Xxxxx 000, Xx.
Xxxxxxxxxx, Xxxxxxx or such other address as may be designated by Andrx in
writing from time to time such sum that has been advanced to CyBear by Andrx
(the "Principal Amount"), plus interest thereon at the rate hereafter set forth.
1. Interest shall accrue on the unpaid Principal Amount of this
Agreement from the date hereof until the Principal Amount is repaid in full, at
an interest rate equal to Prime Rate of Interest plus 1/2% per annum. All
computations of the interest rate hereunder shall be made on the basis of a year
of 365 days on the actual number of days (including the first day but excluding
the last day) any Principal Amount is outstanding.
2. This Agreement reflects the agreement by Andrx to continue to fund
CyBear's operations until CyBear is in a position to raise at least $4,000,000
of its own financing (whether debt or equity) or 12 months from the date CyBear
completes its merger with 1997 Corp., whichever date is earlier (the "Maturity
Date"). Andrx agrees to make at least $3,000,000 available to CyBear on CyBear's
demand. The Principal Amount and all interest thereon shall be paid to Andrx on
the Maturity Date or at such other time and manner as the parties hereto agree,
in writing.
3. Andrx shall keep a record of the amount and the date of the making
of each advance pursuant to this Agreement and each payment of principal with
respect thereto by endorsing such information on the schedule annexed hereto and
made a part hereof. Andrx shall promptly provide to CyBear a copy of each newly
endorsed modification to the schedule.
4. Both principal and interest are payable in lawful money of the
United States of America to the account of Andrx by wire transfer of same day
funds to the account of Andrx at such banking institution as Andrx designates
or, if requested by Andrx, by certified or bank cashier's check payable to Andrx
mailed to Andrx at the address of Andrx as set forth on the records of CyBear or
such other address as shall be designated in writing by Andrx to CyBear.
5. If any payment due under this Agreement is not paid within thirty
(30) days of the date it is due or CyBear fails to perform any of its
obligations in connection with this Agreement (such event being herein referred
to as a "Default"), Andrx has the right to declare all amounts under this
Agreement immediately due and payable and to require that CyBear thereafter pay
interest at the rate of 18% per annum on the outstanding Principal Amount,
beginning on the date the payment was due or the date
the non-payment Default occurred and ending on the date such Default has been
cured to Andrx's satisfaction.
6. CyBear hereby (i) agrees to perform and comply with each of the
terms, covenants and provisions contained in this Agreement, (ii) waives
presentment and demand for payment, notice of dishonor, protest and notice of
protest, and (iii) agrees to pay all of Andrx costs of collection when incurred,
including reasonable attorneys' fees and expenses.
7. This Agreement is subject to the express condition that at no time
shall CyBear be obligated or required to pay interest on the principal balance
at a rate which could subject Andrx to either civil or criminal liability as a
result of being in excess of the maximum rate which CyBear is permitted by law
to contract or agree to pay. If by the terms of this Agreement CyBear is at any
time required or obligated to pay interest on the principal balance at a rate in
excess of such maximum rate, the interest rate due hereunder shall be
immediately reduced to such maximum rate and interest payments in excess of such
maximum rate shall be applied and shall be deemed to have been payments in
reduction of the principal balance.
8. The amounts due under or pursuant to this Agreement may be prepaid
in whole or in part without penalty or premium.
9. This Agreement may not be changed or terminated orally, but only by
an agreement in writing signed by the party against whom enforcement of such
change or termination is sought.
10. CyBear represents that the obligations and debt referred to in this
Agreement are valid, binding and enforceable against it.
11. This Agreement shall be governed by and construed under the laws of
the State of Florida.
CyBear and Andrx have duly executed this Revolving Credit Agreement on
the day and year set forth above.
CyBear, Inc. Andrx Corporation
By: _________________________ By: _________________________
Name: Name:
Title: Title:
