EXHIBIT 10.6
AGREEMENT
This Agreement (the "Agreement") is entered into as of the_________day
of September, 2001, by and between Floridino's International Holdings, Inc., a
Florida corporation (herein "Company") and Chan Capital Ltd. (herein "CCL"). The
Company and CCL are sometimes collectively referred to herein as the "parties".
WHEREAS, the Company wishes to enter into and agreement with CCL
whereby CCL will provide financing to the Company in connection with certain
acquisitions; and
WHEREAS, the parties desire to document the terms and conditions of
such financing and the fees payable to CLL therefor.
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by each of the
parties, the parties agree as follows:
1. DRAW DOWN FACILITY. CCL agrees to provide the Company
$3,500,000(USD) in the form of a draw down facility ("Draw Down Facility") upon
the following terms:
(a) the sole purpose of the funds in the Draw Down
Facility shall be to provide the Company with available funds
to finance acquisitions;
(b) each acquisition must be approved by CLL prior to the
closing date thereof;
(c) no funds from the Draw Down Facility are to be used
for working capital purposes;
(d) CLL shall have the right to review the Company's
financial statements within thirty (30) days of written notice
requesting such review;
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(e) interest on each draw down of funds will be at 10%
per annum payable quarterly from the date of each draw down
closing; and
(f) payment of the principal amount of each draw down is
due on the second anniversary of each draw down closing.
2. CONSIDERATION FOR DRAW DOWN FACILITY. In
consideration for the Draw Down Facility, the Company will issue to CLL one or
more warrants of like tenor to purchase an aggregate of 2,500,000 shares of the
Company's restricted common stock (the "Draw Down Warrants") issued to CLL and
/or its designees at an exercise price of $1.00(USD) per share and exercisable
for two (2) years from the date of issuance.
3. AUTHORITY. All corporate action on the part of the
Company and its Board of Directors necessary for the authorization, execution
and delivery of this Agreement, and the performance of all obligations of the
Company hereunder have been obtained. This Agreement constitutes a valid and
legally binding obligation of the parties enforceable against the other in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to or affecting enforcement of creditors rights).
4. GOVERNING LAW. This Agreement will be governed and
construed in accordance with laws of the State of Florida.
5. ARBITRATION. Any dispute or claim arising under or
with respect to this Agreement will be resolved by arbitration in accordance
with the Rules for Commercial Arbitration of the American Arbitration
Association before a single arbitrator. The decision or award of the
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arbitrator shall be final and binding upon the parties. Any award may be entered
as a judgement or order in any court of competent jurisdiction.
6. MODIFICATION. This Agreement may be modified or
amended only by an instrument in writing signed by all the parties.
7. WAIVER. No party waives any rights or obligations of
another party or any provisions of this Agreement except by an instrument in
writing signed by that party.
8. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter of the Agreement
and its supersedes all prior understandings and agreements, whether written or
oral, and all prior dealings of the parties with respect to the subject matter
hereof.
WHEREFORE, the parties have freely executed this Agreement on the date
set forth above.
Floridino's International Holdings, Inc. Chan Capital Ltd.
By:__________________________________ By:_____________________________
Xxxx Xxxxxxxxx, Chairman Xxxxxx Xxxx, Director
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made on September____________, 2001 by and
between Floridino's International Holdings, Inc. ("Borrower"), Chan Capital Ltd.
("Lender", with Borrower and Lender collectively referred to as the
"Principals") and Xxxxxxxx Xxxxxxx Xxxx, P.A., whose address is 00 Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000 ("Escrow Agent").
WHEREAS, the Principals desire that the Escrow Agent hold One Million
Five Hundred Thousand and NO/100 ($1,500,000.00) Dollars (the "Escrow Property")
in a special escrow account established for the benefit of the Borrower pursuant
to and in accordance with the terms and conditions of that certain agreement
(the "Agreement") by and between the Borrower and the Lender dated
September_____,2001.
WHEREAS, Escrow Agent has agreed to act as escrow agent pursuant to the
Agreement and this Escrow Agreement for the purpose of retaining physical
possession of the Escrow Property on the terms and conditions set forth in the
Agreement and this Escrow Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein
set forth and other good and lawful consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
I. Escrow
A. Escrow Agent agrees to hold all of the Escrow
Property in escrow subject to the terms and conditions contained in the
Agreement and this Escrow Agreement. The provisions of this Escrow Agreement
shall control in the event of any conflict between the provisions hereof and the
provisions of the Agreement.
B. Unless otherwise provided for in this Escrow
Agreement or any addendum hereto, Escrow Agent shall disburse the Escrow
Property with interest or other accumulation in value.
C. Escrow Agent shall not be deemed to have knowledge of
any matter or thing unless and until Escrow Agent has actually received written
notice of such matter or thing and Escrow Agent shall not be charged with any
constructive notice whatsoever.
D. In the event instructions from any of the Principals
would require Escrow Agent to expend any monies or to incur any cost, Escrow
Agent shall be entitled to refrain from taking any such action until it receives
payment for such costs, upon notice from Escrow Agent requesting such payment
given to the Principal delivering such instructions.
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E. Each of the Principals acknowledge and agree that
nothing in this Escrow Agreement shall prohibit Escrow Agent from (1) serving a
similar capacity on behalf of others or (2) acting in the capacity of attorney
for one or more of the Principals in connection with any matter.
II. Release of Escrow Property
A. Escrow Agent agrees to release the Escrow Property in
accordance with the terms and conditions set forth in the Agreement and this
Escrow Agreement.
B. In the event Escrow Agent shall be uncertain as to
its duties or rights hereunder or shall receive instructions, claims or demands
from any of the Principals or from third persons with respect to the Escrow
Property or any other sums or things which may be held hereunder, which, in its
sole and absolute opinion, are in conflict with any provision of this Escrow
Agreement or the Agreement, Escrow Agent shall be entitled to refrain from
taking any action until it shall be directed otherwise in writing by all of the
Principals and said third persons, if any, or by a final order or judgment of a
court of competent jurisdiction.
III. Liability of Escrow Agent
A. It is agreed that the duties of Escrow Agent are
purely ministerial in nature and shall be expressly limited to the safekeeping
of the Escrow Property and for the disposition of same in accordance with the
Agreement and this Escrow Agreement.
B. The Escrow Agent shall be fully protected in acting
on and relying upon any written advice, certificate, notice, direction,
instruction, request or other paper or document which the Escrow Agent in good
faith believes to be genuine or to have been signed or presented by the proper
party or parties, and may assume that any person purporting to give such advice,
certificate, notice, direction, instruction or request or other paper or
document has been duly authorized to do so.
C. The Escrow Agent hereby accepts its appointment and
agrees to act as Escrow Agent under the terms and conditions of this Escrow
Agreement.
IV. Disputes
A. In the event Escrow Agent is joined as a party to a
lawsuit by virtue of the fact that it is holding the Escrow Property, Escrow
Agent shall, at its option, either (1) tender the Escrow Property to the
registry of the appropriate court, or (2) continue to hold the Escrow Property
until final disposition of the case, and then disburse the Escrow Property in
accordance with the court's ultimate disposition of the case.
B. In the event Escrow Agent tenders the Escrow Property
to the registry of the appropriate court or files an action in interpleader
naming the Principals and any affected third
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parties of whom Escrow Agent has received actual notice, Escrow Agent shall be
relieved from any and all further obligation and liability hereunder or in
connection herewith.
V. Term of Agreement
A. This Escrow Agreement shall remain in effect unless
and until it is canceled in any of the following manners:
1. Upon written notice given by each of the
Principals of cancellation of designation of Escrow Agent to act and serve in
said capacity, in which event cancellation shall take effect no later than
twenty (20) days after notice to Escrow Agent of such cancellation;
2. Escrow Agent may resign as escrow agent at
any time upon giving notice to each of the Principals of its desire to so
resign; provided, however, that resignation of Escrow Agent shall take effect no
earlier than ten (10) days after the giving of notice of resignation; or
3. Upon compliance with all provisions as set
forth in this Escrow Agreement and in the Agreement and the distribution of all
of the Escrow Property in accordance with the terms of this Escrow Agreement and
the Agreement;
B. In the event the Principals fail to agree on a
successor escrow agent within the period described hereinabove, Escrow Agent
shall have the right to deposit all of the Escrow Property into the registry of
an appropriate court and request judicial determination of the rights between
the Principals by interpleader or other appropriate action.
C. Upon termination of the duties of Escrow Agent in
accordance with subparagraphs 1,2 or 3 of Paragraph A of this Article V, Escrow
Agent shall deliver all of the Escrow Property to the newly appointed escrow
agent designated by all of the Principals.
D. Escrow Agent shall not be bound by any modification,
cancellation or rescission of this Escrow Agreement unless in writing and signed
by each of the Principals and the Escrow Agent. In no event shall any
modification of this Escrow Agreement, which shall affect the rights or duties
of Escrow Agent, be binding on Escrow Agent unless it shall have given its prior
written consent.
VI. Notices
Any and all notices required to be given hereunder or other
communications to or from the parties hereto shall be in writing and be sent by
hand delivery or telecopy, by internationally
recognized overnight delivery service or by certified mail, postage prepaid,
return receipt requested to the parties as follows:
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If to Borrower: Floridino's International Holdings, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx, Chairman
If to Lender: Chan Capital Ltd.
________________________________________
________________________________________
________________________________________
If to Escrow Agent: Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx Xxxxxxx Xxxx, P.A.
000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
or such other address as the parties may direct by notice given in accordance
herewith. All notices shall be deemed given on the date received or the date
stamped on the return receipt or delivery receipt as the date when delivery was
refused.
VII. Choice of Law and Venue
This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to
principles or conflict of law. In the event any action, suit or proceeding is
instituted as a result of any matter or thing affecting this Escrow Agreement,
the parties hereto expressly submit themselves to, and agree that all actions
arising out of this Escrow Agreement shall occur, solely in the venue and
jurisdiction of the state and Federal courts encompassing Broward County,
Florida.
VIII. Binding Agreement
This Escrow Agreement shall be binding upon the Principals and
Escrow Agent and their respective successors and assigns. Further, each of the
parties hereto declare that they or their counsel participated in the drafting
of this Escrow Agreement and that, accordingly, this Escrow Agreement shall not
be construed more strongly against any party hereto because it drafted this
Escrow Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Floridino's International Holdings, Inc. Chan Capital Ltd.
By:_____________________________________ By:___________________________
Escrow Agent
By: /s/ Xxxxxxxx Xxxxxxx Xxxx, P.A.
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