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Exhibit 10.5
CREDIT AGREEMENT
CREDIT AGREEMENT made this 31st day of October, 2000 by and between OXTAILS
CORP., a Florida corporation (the "Lender"), and ACKEEOX CORP., a Florida
corporation (the "Borrower").
RECITAL:
The Lender has agreed to extend a revolving line of credit facility to the
Borrower (the "Revolver") under which the Lender agrees to make advances to the
Borrower from time to time in an aggregate principal amount at any one time
outstanding not to exceed eighty thousand dollars ($80,000), subject to the
following terms and conditions.
NOW THEREFORE, based on the foregoing and for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMOUNT
Subject to the terms and conditions contained herein, the Lender agrees to make
advances to the Borrower from time to time in an aggregate principal amount at
any one time outstanding not to exceed eighty thousand dollars ($80,000). The
Borrower's indebtedness under the Revolver shall be evidenced by a promissory
note (the "Note") in said amount to be executed and delivered by the Borrower to
the order of the Lender. The Note shall be in the form attached hereto as
EXHIBIT "A".
2. INTEREST RATE
Indebtedness incurred under the Revolver shall bear interest at the rate of nine
percent (9%) per annum. Interest shall be computed on a daily basis, based on a
360-day year and shall be payable monthly commencing on the last day of the
first month following a disbursement under the Revolver, and continuing on the
last day of each month thereafter.
3. PRINCIPAL REPAYMENT AND MATURITY
The principal outstanding under the Revolver shall be due and payable in full,
together with any and all accrued and unpaid interest thereon, on October 31,
2001 (the "Maturity Date").
4. USE OF PROCEEDS
The Revolver shall be used by the Borrower to cover the expenses of the
Borrower's initial public offering and for working capital purposes which arise
in the ordinary course of the Borrower's business. The Borrower may use the
Revolver by borrowing thereunder, repaying the Revolver in whole or in part, and
reborrowing,
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all in accordance with the terms and conditions contained herein, provided,
however, that at the time of each request for a borrowing hereunder, the
Borrower shall not be in default hereunder.
5. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows: (a) the execution and
performance of this Agreement and the Note are valid and binding obligations of
the Borrower, enforceable in accordance with their respective terms; (b) there
are no actions, suits, or proceedings pending or threatened at law or in equity,
or before or by any federal agency or instrumentality, domestic or foreign,
which involve or would adversely affect the transactions contemplated herein or
which could have an adverse effect on the Borrower's business or financial
condition; (c) the Borrower is not in default under any contract, agreement,
indenture, mortgage or other instrument to which it is a party or by which any
of its assets may be bound; (d) the purpose for which the Borrower intends to
use the proceeds of the Revolver does not violate any local, state or federal
laws or regulations; (e) the Borrower has good and marketable title to all its
property and assets and all such property and assets are free and clear of any
liens, except liens for taxes not yet due; (f) the Borrower is duly formed,
validly existing and in good standing under the laws of the State of Florida and
has the power and authority to own its properties and carry on its business as
now being conducted and to make and perform the terms of this Agreement and all
other documents delivered by it in connection therewith; and (g) the execution
and delivery of, and the consummation of the transactions contemplated under,
this Agreement and all documents delivered by the Borrower in connection
therewith have been duly authorized and approved by all necessary corporate and
other action, and no other proceedings on the part of the Borrower are necessary
or required under the laws of the State of Florida, or under the Borrower's
Articles of Incorporation or By-Laws, which have not been duly taken, and the
Borrower has the requisite power and authority to execute, deliver and perform
the terms and provisions of this Agreement pertaining to it and all of the
applicable covenants and agreements contained herein or in any related
documentation.
6. CONDITIONS PRECEDENT
As conditions precedent to the Lender's obligation to close and fund the
Revolver, the Borrower will cause the following to be furnished to the Lender:
(a) Evidence that the Borrower's insurable properties are adequately
insured by financially sound and reputable insurers, in amounts not less than
the full insurable value thereof;
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(b) Resolutions of the Borrower authorizing the Revolver and the
execution of all documents required in connection with the Revolver;
(c) The executed Note;
(d) An agreement executed by Xxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxx
wherein they agree that the Borrower shall not redeem any capital stock of the
Borrower until all indebtedness hereunder is paid and agree to waive any rights
to require redemption that any shareholders may have until all such indebtedness
is paid by the Borrower;
(e) Certification that there exits no pending or threatened litigation,
the result of which could have an adverse effect on the business or financial
condition of the Borrower; and
(f) All other documents required in connection with the Revolver.
7. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Lender that, from the date hereof,
and so long as any obligations of the Borrower to the Lender remain outstanding,
unless the Lender consents otherwise in writing, the Borrower shall:
(a) furnish to the Lender, as soon as available but in any event not
later than ninety (90) days after the close of each fiscal year, an audited
financial statement of the Borrower for such fiscal year including a balance
sheet, related statements of income and retained earnings, and the related
statements of changes in financial position, setting forth in comparative form
the corresponding figures for the preceding fiscal year, all in reasonable
detail, prepared in accordance with generally accepted accounting principles
consistently applied, said statements to be audited by an independent certified
public accountant;
(b) furnish to the Lender, as soon as available but in no event later
than twenty (20) days after the close of each calendar quarter during the term
of the Revolver, a management-prepared financial statement of the Borrower,
including a balance sheet and related statements of income and retained
earnings, all in reasonable detail prepared in accordance with generally
accepted accounting principles;
(c) furnish to the Lender as soon as available but in any event no
later than twenty (20) days after the end of each month, a certificate of no
default under the Revolver, executed and certified to the Lender by an officer
of the Borrower, an accounts receivable aging report, an accounts payable aging
and an inventory report, all in reasonable detail and including such information
as the Lender may request;
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(d) pay all taxes promptly when due or, if the validity or amount of
such taxes is contested in good faith and adequate reserves have been
established, pay such taxes after proceedings relating to them are completed;
(e) conduct its affairs in compliance with all applicable laws,
regulations and the interpretations thereof, and with the requirements of all
regulatory authorities having jurisdiction over it;
(f) furnish to the Lender promptly after the commencement thereof,
notice of any action, suit, proceeding or occurrence which, if resolved
unfavorably to the Borrower would result in a material adverse change in the
financial condition of the Borrower;
(g) maintain and preserve its corporate existence and all rights,
privileges and other authority for the conduct of its businesses;
(h) maintain its properties and facilities in good order and repair;
(i) keep its business and properties insured at all times by insurance
companies and in such amounts as are acceptable to the Lender;
(j) permit representatives of the Lender to visit and inspect the
assets, books, records, papers and financial reports of the Borrower and to
discuss its affairs, finances and accounts with its principal officers and
accountants;
(k) maintain the truthfulness and correctness of any representations
and warranties set forth hereunder; and
(l) pay all obligations to the Lender in accordance with the terms and
conditions of this Agreement or any other agreements or documents obligating the
Borrower to the Lender.
8. NEGATIVE COVENANTS
The Borrower covenants and agrees that from the date hereof, and so long as any
obligations of the Borrower to the Lender remain outstanding, the Borrower will
not, without the Lender's prior written consent:
(a) incur additional indebtedness in an amount exceeding fifty thousand
dollars ($50,000) in the aggregate in each respective fiscal year, other than
trade obligations, accruals, and taxes incurred in the ordinary course of
business;
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(b) permit any loans or advances to, or guarantee any indebtedness of,
any shareholders, employees, insiders or affiliates of the Borrower in excess of
ten thousand dollars ($10,000) in the aggregate at any time;
(c) sell, lease, transfer or otherwise dispose of any of the Borrower's
properties or assets other than in the normal course of business, or enter into
any sale lease-back arrangement;
(d) merge with or acquire all or substantially all of the assets of any
other entity if as a result the Borrower would not be the surviving entity;
(e) liquidate or dissolve, whether voluntarily or involuntarily;
(f) repurchase or redeem any capital stock of the Borrower;
(g) change the ownership, name or the nature of its business;
(h) permit, declare, pay or otherwise commit to distribute any
dividends or distributions on the Borrower's capital stock;
(i) change or remove Xxxxxx X. Xxxxxxxxx or Xxxxx X. Xxxxxxxxx from
their current management positions with the Borrower; or
(j) make capital expenditures which exceed one hundred thousand dollars
($100,000) in the aggregate during any fiscal year.
9. EXPENSES
The Borrower shall be responsible and liable for and shall pay all expenses and
costs in connection with the preparation to close and the closing of the
Revolver and, additionally, Borrower shall pay any taxes and filing, search and
recording fees. The Borrower shall also be responsible and liable for, and shall
hold the Lender harmless from, and shall pay all costs and expenses incurred in
connection with, the administration and enforcement of any of the Borrower's
obligations to the Lender.
10. DEFAULTS AND REMEDIES
If any one or more of the following events of default (an "Event of Default")
shall occur for any reason whatsoever (and whether such occurrences shall be
voluntary or involuntary, or come about or be effected by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court, or
any order, rule or regulation of any administrative or governmental body), that
is to say:
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(a) any representation or warranty made herein or in any report,
certificate, or other instrument furnished in connection with this Agreement, or
the borrowings hereunder, shall prove to be false or misleading in any respect;
(b) default shall occur in the payment of principal or interest on any
indebtedness created hereunder, when and as the same shall become due and
payable, whether at the due date or by acceleration or otherwise, which remains
unpaid twenty (20) days after the due date of such payment;
(c) any default or violation shall occur on the part of the Borrower in
the due observance or performance of any covenant, agreement or other provision
of this Agreement other than for the payment of money, which shall remain
uncured past any cure period provided for herein, and if no such cure period is
specified, if such default shall remain uncured for twenty (20) days after
notice of such default or violation has been given by the Lender to the
Borrower, or after the Borrower has knowledge of such default or violation,
whichever is earlier;
(d) the Borrower shall (i) apply for or consent to the appointment of a
receiver, trustee in bankruptcy for the benefit of creditors, or a liquidator of
the Borrower or of any of the Borrower's property; (ii) admit in writing the
Borrower's inability to pay its debts as they mature or generally fail to pay
its debts as they mature; (iii) make a general assignment for the benefit of
creditors; (iv) be adjudicated as bankrupt or insolvent; (v) file a voluntary
petition in bankruptcy, or a petition or an answer seeking reorganization or an
arrangement with creditors, or seeking to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or liquidation law
or statute or an answer admitting an act of bankruptcy alleged in a petition
filed against it in any proceeding under any such law; or (vi) take any action
for the purpose of effecting any of the foregoing;
(e) an order, judgment or decree shall be entered against the Borrower
without its application, approval or consent, or by any court of competent
jurisdiction, approving a petition seeking its reorganization or appointing a
receiver, trustee or liquidator of the Borrower or of all or a substantial part
of any of its assets, and such order, judgment or decree shall continue unstay-
ed and in effect for a period of thirty (30) days from the date of entry
thereof;
(f) any material adverse change in the financial or business condition
of the Borrower; or
(g) the Borrower's corporate existence is changed;
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then, and in every such Event of Default, the Lender may, at its option, (i)
declare all indebtedness of principal and interest hereunder forthwith to be due
and payable, whereupon the Note shall become due and payable, both as to
principal and interest, without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived, anything contained herein or in
the Note to the contrary notwithstanding, and (ii) exercise all legal rights and
remedies against the Borrower for the indebtedness of the Borrower to the
Lender.
11. NOTICE
All notices required or allowed to be given hereunder shall be delivered by hand
or sent by certified mail return receipt requested, overnight courier or
facsimile transmission, to the party to which such notice is to be given as
follows:
If to the Borrower: Ackeeox Corp.
0000 X. Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Fax No.: 000-000-0000
Attn: Xxxxxx X. Xxxxxxxxx
With a copy to: Mirkin & Xxxxx, P.A.
0000 Xxxx Xxxxx Xxxxx Xxxx. #000
Xxxx Xxxx Xxxxx, XX 00000
Fax No.: 000-000-0000
Attn: Xxxx X. Xxxxxx, Esq.
If to the Lender: Oxtails Corp.
0000 X. Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Fax No.: 000-000-0000
Attn: Xxxxx X. Xxxxxxxxx
provided that additional addresses for the giving of notice may be thereafter
designated by the giving of written notice thereof to the other party. Such
notices shall be deemed given or made three (3) business days following deposit
in the U.S. Mail, certified return receipt requested, or immediately upon
receipt if delivered by hand, overnight courier or facsimile transmission
addressed as herein provided.
12. MISCELLANEOUS
(a) This Agreement is personal in nature and may not be assigned.
(b) Any rights or remedies of the Lender hereunder or under the Note,
or any other documents executed in connection herewith, shall be cumulative and
in addition to every right or remedy contained herein or therein, at law or in
equity or by statute or
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otherwise. Upon the occurrence of any Event of Default hereunder, or as set
forth in the Note, or any other agreement between the Borrower and the Lender,
the Lender may proceed to enforce its rights against the Borrower at such time,
or from time to time, as the Lender in its sole discretion, shall determine.
(c) No delay or omission on the part of the Lender in exercising any
right, power or privilege hereunder or under the Note or any other writings
between the parties hereto shall operate as a waiver thereof, nor shall a single
or partial exercise thereof preclude any other or further exercise of any other
right, power or privilege.
(d) This Agreement may not be altered, modified or rescinded except in
writing executed by the Lender and the Borrower.
(e) All covenants, agreements, representations and warranties contained
herein shall survive the funding of the Revolver by the Lender and the execution
of the Note and any other ancillary documents, and shall continue in full force
and effect so long as any indebtedness of the Borrower to the Lender remains
outstanding.
THE LENDER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY AGREEMENT, DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED
IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDER ENTERING INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
OXTAILS CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Vice President
ACKEEOX CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
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EXHIBIT "A"
PROMISSORY NOTE
$80,000.00 West Palm Beach, Florida
October __, 2000
FOR VALUE RECEIVED, the undersigned, ACKEEOX CORP., a Florida corporation
("MAKER"), promises to pay to the order of OXTAILS CORP., a Florida corporation
("PAYEE"), at such address as PAYEE or any other holder of this Note may
designate in writing from time to time the principal sum of EIGHTY THOUSAND
DOLLARS ($80,000), or so much thereof as may be advanced and outstanding from
time to time, together with interest thereon at the rate of nine percent (9%)
per annum to be calculated on the basis of a three hundred sixty (360) day year.
This Note constitutes the "Note" described in that certain Credit Agreement of
even date herewith between MAKER and PAYEE (the "Agreement"), and the principal
and the interest due hereunder shall be payable in accordance with the terms
and provisions of the Agreement applicable to the Note. This Note shall be
deemed to evidence the principal amount actually outstanding under the
"Revolver" described in the Agreement, even though the face amount hereof may
be in excess of such principal amount outstanding from time to time.
The terms and provisions of the Agreement are incorporated by this reference as
though set forth in full herein, and any default under the Agreement shall
constitute a default under this Note. In the event of any conflict or
inconsistency between the terms and provisions of this Note and those of the
Agreement, the terms and provisions of the Agreement shall in all respects
govern and control.
In the event of any default under the Agreement which is not cured within any
applicable grace period, including a failure to make any payment of principal
or interest due hereunder on the due date thereof, PAYEE may, at its option,
accelerate maturity, and the unpaid principal balance hereof and all accrued
interest shall thereupon immediately become due and payable. Failure to
exercise this option with respect to any failure or breach by MAKER shall not
constitute a waiver of the right as to any subsequent failure or breach.
MAKER and all endorsers, guarantors, sureties and other parties now or
hereafter liable for the payment of any sum or sums due or to become due under
the terms of this Note waive presentment, protest and demand, and notice of
protest, demand and dishonor, and nonpayment of this Note, and consent that the
holder hereof shall have the right, without notice, to deal in any way at any
time with any party hereto, or to grant any extension or extensions of time for
payment of any of said indebtedness or any other indulgences or forbearances
whatsoever.
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MAKER further agrees to pay all reasonable costs of collection, including
reasonable attorneys' fees (inclusive of any bankruptcy or appellate
proceedings), in case the principal of this Note or any interest thereon is not
paid when due, whether suit be brought or not.
No delay or omission on the part of the holder hereof in exercising any right
hereunder shall operate as a waiver of such right or any other right under this
Note, nor shall any waiver on one occasion be construed as a bar to or waiver
of any such right on any future occasion. No waiver shall be effective unless
in writing and signed by the holder.
Except as otherwise specifically provided with respect to the calculation of
interest, this Note shall be governed as to validity, interpretation,
construction, effect and all other respects by the laws and decisions of the
State of Florida.
The undersigned hereby specifically authorizes any action brought upon the
enforcement of this Note by PAYEE to be instituted and prosecuted in the
Circuit Court of Palm Beach County, Florida.
All payments made hereunder shall be credited first to accrued interest and then
to principal; however, in the event of any default hereunder, PAYEE may, in its
sole discretion, and in such order as it may choose, apply any payment to
interest, principal, and/or lawful charges and expenses then accrued.
From and after the due date of any payment(s) under this Note, either according
to its terms or as a result of a declaration of acceleration made by the holder
hereof, such past due payment(s) shall bear interest from the due date until
paid, at the highest rate permitted under applicable law, or eighteen percent
(18%) per annum, whichever is lower, provided, however, in no event shall such
rate exceed the highest rate permissible under applicable law.
This Note is binding upon MAKER and its successors and assigns.
PAYEE BY ITS ACCEPTANCE HEREOF AND MAKER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS NOTE AND ANY DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR PAYEE ACCEPTING THIS NOTE FROM MAKER AND FOR PAYEE
ENTERING INTO THIS AGREEMENT.
ACKEEOX CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
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