Exhibit 10.13
CASH ADVANCE AND SECURITY AGREEMENT
This cash advance and security Agreement ("Agreement") is entered into this
20th day of December, 1996 by and between Apollo International of Delaware,
Inc., a Delaware corporation (the "Company") and Framan Company.
RECITALS:
WHEREAS, the Company desires to have available more cash for purchase of
parts; and
WHEREAS, Framan Co. desires to make available to the Company cash advances
for such purposes.
AGREEMENT:
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by reference.
2. CASH ADVANCES. Upon delivery by the Company to Framan Co. of a
properly approved invoice or purchase order for parts inventory as ordered
from time to time by the Company from its vendors, Framan Co. shall provide
the Company with cash equal to the amount of such invoice, which cash shall
be wired, or transferred by other means, to the Company's operating account
pursuant to the wiring instructions as provided by the Company (the
"Advances"). In addition to the delivery to Framan Co. of such invoice(s),
the Company shall concurrently provide Framan Co. with the following: (a) a
copy of the Company's check made payable to the applicable vendor for the
amount of the invoice, (b) a copy of the applicable invoice and/or purchase
order, properly approved for payment, and (c) a copy of a current schedule of
such advances, the form of which is attached hereto as Exhibit A, (d) other
documentation regarding such transaction as may be requested by Framan Co.
Framan Co. shall have the right to limit the total cash advanced to the
Company under this Agreement.
3. NEGOTIATION OF BEST PRICE. The Company shall use its best efforts to
negotiate the best possible price for products and inventory ordered from its
vendors. The amount payable to vendors as reflected in the invoices and/or
purchase orders shall represent the best price the Company was able to obtain
based on cash terms.
4. REPAYMENT TERMS. The Advances shall accrue interest at the rate of
two percent (2%) above the prime rate as quoted by the Wall Street Journal on
the date such Advances are transferred to the Company, and all such outstanding
and unpaid Advances
and accrued and unpaid interest thereon shall be paid by the Company from the
proceeds of the Company's initial public offering of its Common Stock.
5. COLLATERAL AND SECURITY INTEREST. The collateral for the Advances
shall be the Company's parts inventory, fixtures, equipment and all other assets
(the "Collateral"). To secure the payment of the Advances and interest thereon
(together, the "Obligation"), the Company does hereby grant to Framan Co. a
security interest in each and all of the Collateral. The Company shall xxxxx
Xxxxxx Co. access to the Company's books for the purposes of review with prior
notice during normal business hours.
6. DEFAULT. The occurrence of one or more of the following events shall
constitute a default in this Agreement:
(a) The failure or omission of the Company to pay when due any of the
Liabilities;
(b) The making of an assignment by the Company for the benefit of the
Company's creditors;
(c) The commencement of proceedings in bankruptcy for reorganization
of the Company or for the adjustment of any of its debts under the U.S.
Bankruptcy Code or under any law, whether state or federal, now or hereafter
existing for the relief of debtors; or
(d) The appointment of a receiver or trustee for the Company or for
any substantial part of its assets, or the institution of any proceedings for
the dissolution, or the full or partial liquidation of the Company.
7. RIGHTS UPON DEFAULT. Upon the occurrence of any default under this
Agreement, Framan Co. shall have and may exercise any or all of the following
rights:
(a) To declare the Liabilities, or any of them immediately due and
payable without demand or notice and the same thereupon shall immediately become
due and payable without demand or notice.
(b) To exercise from time to time any and all rights and remedies of
a secured party under the Uniform Commercial Code of the State of Florida and
any and all rights and remedies available to it under any other applicable law.
8. PERFECTION. In order to perfect the security interest in the
Collateral granted to Framan Co. hereunder, the Company agrees to execute and
have recorded with the Florida Department of State a UCC-1 Financing Statement
reflecting Framan Co.'s security interest in the Collateral.
9. NOTICE. All notices under the Agreement shall be in writing and shall
be deemed to be given (i) in the case of delivery, when delivered to the address
set forth on the signature page to this Agreement and addressed to the recipient
party; (ii) in the case of mailing, on the sixth business day after deposit in
the U.S. Mail, postage prepaid, and sent by certified or registered mail, and
addressed to the recipient party; and (iii) in the case of facsimile or
telecopier, when the same has been actually received by the other party as
confirmed by the sending party. Either party hereto may change the address at
which said notices are to be sent by the giving of notice of such change to the
other party as set forth herein.
10. TERM. This Agreement and the rights and privileges granted hereunder
to Framan Co. shall continue and remain in full force and effect until all
Liabilities have been paid in full to Framan Co. At such time, this Agreement
shall be marked "Canceled" and returned to the Company and Framan Co. shall
further execute a termination statement in regard to any financing statement
that is solely related to the Collateral.
11. WAIVER. No waiver by Framan Co. of any default shall operate as a
waiver of any other default or of the same default on a future occasion. No
delay or omission on the part of Framan Co. in exercising any right or remedy
shall operate as a waiver thereof.
12. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with and governed by the laws of the State of Florida.
13. SEVERABILITY. If any provision of this Agreement shall be declared
invalid or unenforceable by a court of competent jurisdiction, such provision
shall be ineffective to the extent of such invalidity or unenforceability,
without invalidating or rendering unenforceable the remainder of such provision
or the remaining provisions of this Agreement.
14. COSTS AND ATTORNEY'S FEES. In the event of any legal proceedings in
connection with this Agreement, Framan Co. shall be entitled to receive from the
Company its reasonable legal fees (including costs incurred) in connection with
such proceeding, including costs of collection.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto in regard to the subject matter hereof and this
Agreement may not be altered, amended or otherwise modified except by a writing
signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
APOLLO INTERNATIONAL OF
DELAWARE, INC.
By: /s/
-----------------------------
Xxxxx X. Xxxxxx, President
0000 X. XX Xxxxxxx 00
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
FRAMAN COMPANY
By: /s/
-----------------------------
Xxxxx X. Xxxxxxx
X.X. Xxx 000
Xxxxx Xxxxxxx, XX 00000-0000
AMENDEMENT TO
CASH ADVANCE AND SECURITY AGREEMENT
THIS AMENDMENT TO CASH ADVANCE AND SECURITY AGREEMENT (the "Amendment") is
entered into this 24th day of February, 1997 by and between Apollo International
of Delaware, Inc., a Delaware corporation (the "Company") and Framan Company
("Framan").
RECITALS:
WHEREAS, the Company and Framan entered into a Cash Advance and Security
Agreement (the "Agreement") on December 20th, 1996 and both parties desire to
amend the Agreement; and
WHEREAS, the Company and Framan desire to amend Section 4 of the Agreement
regarding repayment terms, upon the terms and conditions stated below.
NOW, THEREFORE , in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by reference and form a part of this Amendment.
2. EFFECTIVE DATE. The provisions of this Amendment shall be retroactive
and shall become effective as of the date of the Agreement which is December
20th, 1996 (the "Effective Date").
3. REPAYMENT TERMS. The Advances (as defined in the Agreement) shall
accrue simple interest as of the Effective Date at the rate of two (2%) percent
above the prime rate as quoted by the Wall Street Journal on the date such
Advances are transferred to the Company. The repayment of the Advances shall be
as follows:
a. The Company shall make interest only payments to Framan
commencing on the first business day of the month following the Closing of the
Company's initial public offering and continuing on the first business day of
each month thereafter until the Advances and all interest accrued thereon are
repaid in full to Framan.
b. Company shall repay up to one-half (1/2) of the then outstanding
principal balance of the Advances on the earlier of (i) June 1, 1998; or (ii)
the last day of the first fiscal quarter that the Company's gross revenue
exceeds Five Hundred Thousand
($500,000) dollars, subject to the determination by the Company's President that
there will be sufficient funds available to meet the Company's expenses.
c. Company shall repay one-half (1/2), or more, of the then
outstanding principal balance of the Advances on the last day of each subsequent
fiscal quarter that the Company's gross revenue exceeds Five Hundred Thousand
($500,000) dollars, subject to the determination by the Company's President that
there will be sufficient funds available to meet the Company's expenses.
d. Any outstanding principal balance of Advances and accrued and
unpaid interest shall be paid in full no later than December 31, 1998.
4. AMENDMENT. Except as expressly modified and amended herein, the
Agreement shall remain in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first written above.
APOLLO INTERNATIONAL OF
DELAWARE, INC
By: /s/ Xxxxx X. Xxxxxx, President
FRAMAN COMPANY
By: /s/ Xxxxx X. Xxxxxxx
