EXHIBIT 10.5
CREDIT AGREEMENT
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AGREEMENT made and entered into this 18th day of December, 1997, by and
between Interactive Coupon Marketing Group, Inc., hereinafter referred to as the
"Company", and Xxxxxxx X. Xxxxx, Trustee of the Xxxxxxx X. Xxxxx Revocable
Living Trust u/a dated March 21, 1990, as amended, hereinafter referred to as
the "Lender".
R E C I T A L S
The Company desires to apply to the Lender for the Lender's commitment,
subject to all the terms and conditions hereof, to make a revolving credit
available to the Company.
NOW THEREFORE, it is agreed to between the parties as follows:
Definitions
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1. (a) The term "Note" or "Notes" shall mean all Revolving Credit Notes
evidencing loans made pursuant to this Credit Agreement.
(b) "Person" shall mean and include an individual, partnership,
corporation, trust, unincorporated organization, and a government or any
department or agency thereof.
(c) "Officer's Statement" shall mean a statement signed in the name of the
Company by its President, one of its Vice Presidents, its Treasurer, or its
Secretary.
(d) "Funded Debt" shall mean any obligation for borrowed money or the
deferred purchase price of property, real or personal, payable more than one
year from the date of the creation thereof, which under generally accepted
accounting principles is required to be shown on the balance sheet as a long-
term liability.
(e) "Current Debt" shall mean any obligation for borrowed money (and any
notes payable and drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money) payable on demand or within a
period of one year from the date of the creation thereof; provided that any
obligation shall be treated as Funded Debt, regardless of its term, if such
obligation is renewable at the option of the Company, pursuant to the terms
thereof or of a revolving credit or similar agreement, to a date more than one
year after the date of the creation of such obligation.
(f) "Debt" shall mean Funded Debt and/or Current Debt.
(g) "Subsidiary" shall mean any corporation at least fifty-one (51%)
percent of the stock of every voting class of which shall, at the time as of
which any determination is being made, be owned by the Company and/or a
Subsidiary.
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(h) "Prime Lending Rate" shall mean the prime lending rate from time to
time established by Comerica Bank.
Revolving Credit
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2. (a) The Revolving Credit shall not exceed Five Hundred Thousand Dollars
($500,000.00) in aggregate principal amount at any one time outstanding and
shall be available to the Company, and may be availed of by the Company in its
discretion from time to time, and may be repaid and used again during the period
from the date hereof to and including the earlier of either the date of the
conversion of all or any part of the Revolving Credit into the Term Credit
provided for in Paragraph 3, or December 31, 1998, at which time the commitment
of the Lender shall expire.
(b) Each loan under the Revolving Credit shall be in an amount of Ten
Thousand Dollars ($10,000.00), or a multiple thereof, and the Lender shall
receive a Revolving Credit Note of the Company payable to its order and
substantially in the form (with appropriate insertions) attached hereto as
Exhibit A to evidence such loan. Such Revolving Credit Notes shall be dated in
each case as of the date of the making of the particular loan evidenced thereby,
shall be expressed to mature not later than December 31, 1998, and shall be
expressed to bear interest prior to the maturity thereof (computed on the basis
of a year of 365 or 366 days, as the case may be, and payable at the maturity
thereof) on the principal amount thereof from time to time remaining unpaid
thereon at two (2%) percent in excess of the Prime Commercial Lending Rate (as
herein before defined) from time to time in effect (with any change in said
interest rate resulting from a change in said Prime Commercial Lending Rate to
be and become effective as and when such change in the Prime Commercial Lending
Rate shall become effective). The principal of all Revolving Credit Notes
remaining unpaid after the maturity thereof, whether by acceleration or
otherwise, shall be expressed to bear interest until paid at a rate per annum of
two (2%) percent above the rate applicable to such Revolving Credit Note on the
date of such maturity.
Manner of Borrowing
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3. The Company shall give the Lender at least three (3) business days' prior
notice of the date upon which it requests that a loan be made under the
Revolving Credit, and the Company shall specify the amount of such loan. The
proceeds of each loan hereunder shall be wire transferred to Company upon the
receipt by the Lender of the Revolving Credit Note, and other showings herein
provided for.
Grant of Warrants
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4. As additional consideration for extending the Line of Credit evidenced
hereby, the Company shall issue to Lender that number of Warrants to purchase
that number of shares of the Company's common stock, in the form attached hereto
as Exhibit "B", equal to the maximum
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amount drawn by the Company pursuant to this Line of Credit, divided by the sum
of One thousand five hundred and 00/100 ($1,500.00) dollars, and rounded to the
nearest whole number. Warrants shall be issued to Lender within thirty (30) days
of date the Company draws down the Line of Credit to a new maximum loan amount,
over the previous maximum loan amount.
Prepayments
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5. The Company shall have the privilege of prepaying without premium or penalty
and in whole or in part the Notes at any time, such prepayment to be made by the
payment of the principal amount to be prepaid and accrued interest thereon to
the date fixed for prepayment. Any amount prepaid on the Notes may, subject to
the terms and conditions hereof, be borrowed, repaid, and borrowed again.
Termination
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6. The Company shall have the right at any time and from time to time, upon
three (3) business days' prior notice to the Lender, to terminate without
premium or penalty and in whole or in part the Revolving Credit available
hereunder, any partial termination to be in an amount of Ten Thousand and 00/100
($10,000.00) Dollars, or a multiple thereof. No later than the termination date
stated in such notice, the Company shall make such payments as may be necessary
to reduce the aggregate principal amount of the Revolving Credit Notes then
outstanding to the amount to which the Revolving Credit has been so reduced, and
shall also pay the interest on such principal to such termination date.
Place and Application of Payments
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7. All payments of principal, interest, and delivery of warrants shall be made
to the Lender at X.X. Xxx 0000, Xxxx, Xxxxxxxx 00000-0000. Prepayments
applicable to the Notes shall be applied on any outstanding Note selected by the
Company.
Representations and Warranties
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8. The Company represents and warrants as follows:
(a) The Company, and each Subsidiary, is duly organized and existing under
the laws of its respective state of incorporation and is duly licensed or
qualified in each jurisdiction wherein it carries on a substantial portion of
its business or where there is located a substantial portion of its business and
assets; the Company has all necessary corporate power to carry on its present
business; and has full power, right, and authority to enter into this Agreement,
to make the borrowings herein provided for, to issue the Notes and to perform
each and all of the matters and things herein provided for; and this Agreement
does not, nor will the performance or observance by the Company of any of the
matters and things herein provided for contravene any provision of law or any
charter or bylaw provision of the Company, or any covenant, indenture, or
agreement of or affecting the Company or any Subsidiary or their respective
properties.
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Covenants
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9. The Company agrees that, so long as any credit is available to or in use by
the Company hereunder, except to the extent compliance in any case or cases is
waived in writing by the Lender:
(a) The Company will maintain, preserve, and keep its properties, and
equipment in good repair, working order, and condition, ordinary wear and tear
excepted, and will from time to time make all necessary and proper repairs,
renewals, replacements, additions, and improvements thereto so that at all times
the efficiency thereof shall be fully preserved and maintained, and will cause
each Subsidiary to do so in respect of property owned or used by it.
(b) The Company will duly pay and discharge all taxes, rates, assessments,
fees, and government charges upon the Company, except to the extent being
contested in good faith. The Company will insure and keep insured, and will
cause each Subsidiary to insure and keep insured, all insurable property owned
by it.
(c) The Company will maintain a standard and modern system of accounting in
accordance with sound accounting practice, and will furnish to the Lender and
its duly authorized representatives such information respecting the business and
financial condition of the Company and its Subsidiaries as may be reasonably
requested; and without any request will furnish the Lender:
(1) As soon as available, and in any event within sixty (60) days
after the close of each quarterly fiscal period of the Company (excluding
the last such period in each fiscal year), a copy of the balance sheet and
profit and loss statement on a consolidated basis for such period of the
Company and its Subsidiaries accompanied by a statement from a responsible
financial officer thereof to the effect that to his best knowledge and
belief such financial statements are true, correct, and complete;
(2) As soon as available, and in any event within ninety (90) days
after the close of each fiscal year, a copy of the balance sheet and profit
and loss statement on a consolidated and consolidating basis for such
fiscal year of the Company prepared in accordance with sound accounting
principals, accompanied by a statement from a responsible financial officer
thereof to the effect that to his best knowledge and belief such financial
statements are true, correct, and complete; and
(3) As soon as available, and in any event within ninety (90) days
after the close of each fiscal year, a copy of the audit report for such
year and accompanying financial statements, including balance sheet, profit
and loss statement, and statement of changes in financial position on a
consolidated basis for the Company, showing in comparative form the figures
for the previous fiscal year, as prepared and certified by independent
public accountants of recognized standing selected by the Company.
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(d) Except as approved by Lender in writing, the Company will not declare
or pay any dividends, except for dividends payable solely in capital stock of
the Company, nor make any distributions on or with respect to any of its capital
stock of any class or series, whether now or hereafter authorized and
outstanding, nor purchase, redeem, or otherwise acquire or retire any such
capital stock (except out of the proceeds of or in exchange for a substantially
concurrent issue and sale of capital stock of the Company in addition to that
now issued and outstanding) if, after giving effect thereto, the total amount of
all dividends, distributions, purchases, redemptions, acquisitions, and
retirements declared, paid or made after the date hereof, would cause the
Company to be insolvent.
(e) The Company will not, nor will it permit any Subsidiary to, issue,
incur, assume, or permit to remain outstanding any Debt other than:
(1) Debt represented by the Notes;
(2) Debt of any Subsidiary to the Company or to another Subsidiary;
(3) Current Debt of the Company or its domestic Subsidiaries not
exceeding
One Million Dollars ($1,000,000) in aggregate principal amount at any one
time outstanding;
(4) Debt incurred in connection with the purchase of real or personal
property, whether secured or unsecured, provided that such Debt is
permitted under this clause.
Events of Default
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10. Any one or more of the following shall constitute an event of default under
this Agreement:
(a) Delinquency for a period of ten (10) days in payment when due of
principal or interest on any Note, whether at the stated maturity thereof or at
any other time provided in this Agreement;
(b) Failure to observe or perform any other provision hereof when such
failure is not remedied within thirty (30) days after notice thereof to the
Company by the Lender or by the holder or holders of any Note then outstanding
hereunder;
(c) Any representation or warranty made by the Company herein, or in any
statement or certificate furnished by it pursuant hereto, or in connection with
any loan made hereunder, proves untrue in any material respect as of the date of
the issuance or making thereof, and shall not be made good within thirty (30)
days after notice thereof to the Company by the Lender or by the holder or
holders of any Note then outstanding hereunder;
(d) The Company, or any Subsidiary, becomes insolvent or bankrupt, or
admits in writing its inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors,
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or applies for or consents to the appointment of a trustee or receiver for it or
for the major part of its property;
(e) A trustee or receiver is appointed for the Company or any Subsidiary or
for the major part of its property and is not discharged within ninety (90) days
after such appointment; or
(f) Bankruptcy, reorganization, arrangement, insolvency, or liquidation
proceedings or other proceedings for relief under any bankruptcy law or laws for
the relief of debtors are instituted by or against the Company or any Subsidiary
and, if instituted against the Company or such Subsidiary, are consented to or
are not dismissed within ninety (90) days after such institution.
Remedies for Default
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11. (a) When any event of default described in subsections (a) through (c),
inclusive, of Paragraph 10 has occurred and is continuing, the Lender or the
holder of the Note may, by notice to the Company, either terminate the remaining
commitment hereunder of the Lender on the date (which may be the date thereof)
stated in such notice, or else declare the principal of and the accrued interest
on all outstanding Notes to be forthwith due and payable and thereupon all of
said Notes, including both principal and interest, shall be and become
immediately due and payable without further demand, presentment, protest, or
notice of any kind.
(b) When any event of default described in subsections (d) through (f),
inclusive, of Paragraph 10 hereof has occurred and is continuing, then all
outstanding Notes shall immediately become due and payable without presentment,
demand, protest, or notice of any kind, and the obligation of the Lender to
extend further credit pursuant to any of the terms hereof shall immediately
terminate.
(c) The Company agrees to pay to the Lender or any other holder of any Note
outstanding hereunder, all expenses incurred or paid by the Lender or any such
holder, including reasonable attorney's fees and court costs, in connection with
the enforcement of any of the terms hereof of the Notes.
Miscellaneous
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12. (a) This Agreement and all of the covenants, warranties, and representations
of the Company, and all of the powers and rights of the Lender hereunder, shall
be in addition to and cumulative of all other covenants, representations, and
warranties of the Company and all other rights and powers of the Lender
contained in, or provided for in, any other instrument or document now or
hereafter executed and delivered by the Company to or in favor of the Lender. No
delay or failure on the part of the Lender in the exercise of any power or right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of the same preclude any other or further exercise thereof or the
exercise of any other power or right; and the rights and remedies of the Lender
are cumulative to and not exclusive of any rights or remedies which it would
otherwise have. No waiver, consent or modification, or amendment shall be
effective as against the Lender unless the same is in writing and signed by an
officer of the Lender. No such amendment, modification,
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waiver, or consent shall extend to or affect any obligation or right except to
the extent expressly provided for therein. All computations and determinations
of the assets and liabilities of the Company for the purpose of this Agreement
shall be made in accordance with generally accepted principles of accounting
consistently applied, except as may be otherwise specifically provided herein.
(b) All communications provided for herein shall be in writing and shall be
deemed to have been given when delivered personally or when deposited in the
United States mail, registered or certified, postage prepaid, addressed, if to
the Lender, at X.X. Xxx 0000, Xxxx, Xxxxxxxx 00000-0000, or, if to the Company,
at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000.
(c) The Company agrees to pay and reimburse the Lender for all expenses and
damages paid or incurred by the Lender, including court costs and reasonable
attorney's fees, arising out of a default hereunder or the collection of the
Note or any other liability, or in preserving or protecting or exercising the
rights of the Lender hereunder or other liabilities, including all of the
foregoing, incurred in any bankruptcy, arrangement, or reorganization proceeding
involving the Company. Any or all indebtedness owing by the Lender to the
Company may at any time without notice or demand be offset and applied on any
indebtedness or liability of the Company to the Lender, whether or not then due.
(d) This Agreement shall be binding upon the Company and its successors and
assigns, and shall inure to the benefit of the Lender and its successors and
assigns, including any subsequent holder or holders of the Note or any interest
therein.
Governing Law
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13. This Agreement shall be governed by the laws of the State of Michigan.
Executed at Birmingham, Michigan, on the day and year first above written.
"COMPANY"
INTERACTIVE COUPON MARKETING GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
CEO
Its:____________________________________
"LENDER"
XXXXXXX X. XXXXX, TRUSTEE OF THE
XXXXXXX X. XXXXX REVOCABLE LIVING
TRUST u/a DATED MARCH 21, 1990,
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AS AMENDED
By: /s/ Xxxxxxx X. Xxxxx
____________________________________
Xxxxxxx X. Xxxxx, Trustee
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FIRST AMENDMENT TO CREDIT AGREEMENT
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This First Amendment to Credit Agreement made and entered into this 6th day
of February, 1998, by and between Interactive Coupon Marketing Group, Inc.,
hereinafter referred to as the "Company", and Xxxxxxx X. Xxxxx, Trustee of the
Xxxxxxx X. Xxxxx Revocable Living Trust u/a dated March 21, 1990, as amended,
hereinafter referred to as the "Lender".
R E C I T A L S
Whereas, the Company and Lender entered into a certain Credit Agreement on
December 18, 1997 ("Credit Agreement"); and
Whereas, the parties desire to amend the Credit Agreement.
NOW THEREFORE, effective as of the date hereof, the Credit Agreement shall
be amended as follows:
I. Section 2 (a) shall be amended and restated as follows:
"2. (a) The Revolving Credit shall not exceed One Million Dollars
($1,000,000.00) in aggregate principal amount at any one time outstanding
and shall be available to the Company, and may be availed of by the Company
in its discretion from time to time, and may be repaid and used again
during the period from the date hereof to December 31, 1998, at which time
the commitment of the Lender shall expire."
II. As security for the repayment of all sums loaned or to become due
pursuant pursuant hereto, the parties are simultaneously executing a
Security Agreement, evidencing the grant of a security interest in
certain patents and/or patent applications owned by the Company.
III. This Addendum and the Credit Agreement shall inure to and be
binding on the heirs, trustees, executors, administrators, successor
and assigns of each of the parties hereto.
IV. Except as specifically amended herein, the Credit Agreement is
not amended or modified in any manner whatsoever.
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IN WITNESS WHEREOF, the parties have caused this First Amendment to
Credit Agreement to be executed by their respective duly authorized officers and
trustee on the day and year first above appearing.
"COMPANY"
INTERACTIVE COUPON MARKETING GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Its: CEO
____________________________________
"LENDER"
XXXXXXX X. XXXXX, TRUSTEE OF THE
XXXXXXX X. XXXXX REVOCABLE LIVING
TRUST u/a DATED MARCH 21, 1990,
AS AMENDED
By: /s/ Xxxxxxx X. Xxxxx
____________________________________
Xxxxxxx X. Xxxxx, Trustee
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