EXHIBIT 10.9
REVOLVING CREDIT AGREEMENT DATED AS OF
DECEMBER 1, 2003 WITH XXXXX XXXX
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (this "AGREEMENT") is made as of
December 1, 2003 by and between CRYSTALIX GROUP INTERNATIONAL, INC., a Nevada
corporation ("BORROWER") and XXXXX XXXX ("LENDER").
PRELIMINARY STATEMENT
Borrower wishes to borrow from Lender the principal sum of One Million
Dollars ($1,000,000) and Lender has agreed to provide such money for the purpose
of establishing a revolving line of credit, subject to the terms and conditions
contained herein.
AGREEMENT
NOW, THEREFORE, Lender and Borrower agree as follows.
1. REVOLVING CREDIT.
1.1. REVOLVING CREDIT. Subject to the terms and conditions of
this Agreement, Lender hereby agrees to make advances ("ADVANCES") to Borrower
from time to time from the date of this Agreement, not to exceed at any time the
aggregate principal sum of One Million Dollars ($1,000,000) (the "LOAN").
1.2. REVOLVING CREDIT NOTE. The Loan shall be evidenced by a
Revolving Credit Note dated the same date as this Agreement (the "NOTE"), all
terms of which are incorporated herein by this reference.
1.3. INTEREST. The outstanding principal balance of each Advance
shall bear interest from the date thereof until full payment thereof is made at
an annual rate of ten percent (10%). Interest not paid when due shall bear
interest at the Default Rate (as defined in the Note) to the fullest extent
permitted by law. Interest on the Advances shall be payable monthly on the first
day of each month, commencing January 1, 2004. Payment under the Note shall be
made to Lender at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, or
at such other place as Lender may designate in writing. Whenever an event of
default under this Agreement has occurred and is continuing, the interest rate
on the unpaid principal balance of the Advances shall, at the option of Lender,
be at the Default Rate (as defined in the Note), to the fullest extent permitted
by law.
1.4. BORROWING AND REPAYMENT. Borrower may, from time to time
during the term of this Agreement, borrow, partially or wholly repay and
reborrow Advances hereunder, subject to all of the limitations, terms and
conditions contained herein, provided that the total outstanding Advances
hereunder shall at no time exceed the total amount of the aggregate of the Loan.
1.5. REQUEST FOR ADVANCE; LENDER'S DISCRETION. Each Advance
shall be made pursuant to an executed written request stating the intended use
of the Advance and anticipated source of repayment, which Borrower shall deliver
to the Lender at least twenty-four (24) hours
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prior to the date and time each Advance is requested to be made. Lender may, in
his sole discretion, decline to make one or more Advances based upon Lender's
review of the request for Advance and its intended purpose. Notwithstanding the
foregoing, Advances may be made by Lender, without request by Borrower, to pay
interest or any other amounts owing to Lender under this Agreement, or to pay
consulting fees and expenses owed by the Borrower to Lender or any affiliate of
Lender.
1.6. PURPOSE. Advances under the Loan shall be used for general
operating purposes and capital expenditures.
1.7. NO WAIVER. Any decision by Lender not to require payment
of any interest, fee, cost or other amount payable hereunder or under any other
document, instrument or agreement at any time executed in connection herewith
(collectively referred to as "LOAN DOCUMENTS") on any occasion shall in no way
limit or be deemed a waiver of Lender's right to require payment of any such
amount on any subsequent occasion.
2. CONDITIONS PRECEDENT. The obligation of Lender to make any Loan
under this Agreement is subject to the following conditions:
2.1. COMPLIANCE. The representations and warranties contained
herein shall be true on and as of the date of the making of any Advance
hereunder and on such date, no event of default and no condition, event or act
which, with the giving of notice or the lapse of time or both, would constitute
an event of default, shall exist.
2.2. DOCUMENTATION. Prior to the making of the initial Advance
hereunder, Lender shall have received, in form and substance satisfactory to
Lender, the following described documents, each duly executed and, where
appropriate, acknowledged, and in form and content acceptable to Lender:
(a) this Agreement;
(b) the Note;
(c) Amendment to Security Agreement.
3. DEFAULT.
3.1. EVENTS OF DEFAULT. Upon the happening of any one or more of
the following events of default, the principal unpaid balance of the Note, plus
accrued interest thereon, shall, at the option of Lender and without notice,
demand or presentment, all of which are hereby expressly waived by Borrower,
become due and payable and the obligation, if any, of Lender to make further
Advances hereunder shall immediately cease and terminate. The following shall
constitute events of default:
(a) Borrower's failure to pay or perform any obligations,
liabilities or indebtedness of Borrower or any of its subsidiaries to Lender,
whether under this Agreement or any other agreement, note or instrument, now or
hereafter existing, as and when due (whether at maturity or by acceleration and
no prior demand therefor by Lender being necessary);
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(b) Borrower's failure to perform any of the non-monetary
covenants, agreements or conditions of this Agreement or any other agreement
between Borrower and Lender, if such failure continues for thirty (30) days
after Borrower's receipt of written notice thereof by Lender;
(c) Insolvency of; business failure of; the appointment of
a custodian, trustee, liquidator or receiver for, or for any property of; an
assignment for the benefit of creditors under insolvency or debtor's relief law;
or for any readjustment of indebtedness, composition or extension by or against,
Borrower;
(d) Lender's determination that any express representation
or warranty made by Borrower to Lender is, or was, untrue or materially
misleading; or
(e) The filing or commencement of a proceeding against
Borrower for dissolution or liquidation, voluntary or involuntary termination of
operations or dissolution of Borrower.
3.2. DEFAULT INTEREST. In the event that any amount due under
this Agreement is reduced to judgment, or if the Borrower is five (5) or more
days late in making any payment required to be made under the Note, or if any of
the events of default shall occur, and said default is not cured within five (5)
days after the date Lender sends to Borrower, at the address set forth herein,
written notice of the default, the total unpaid principal balance of the Note
and accrued and unpaid interest thereon (past due interest being compounded)
shall then begin accruing interest at the Default Rate (as defined in the Note),
until such time as all past due payments and accrued interest are paid. At that
time, the interest rate will revert to that rate provided in the Note. Borrower
acknowledges that the effect of this Default Rate (as defined in the Note) could
operate to compound some of the interest obligations due and the Borrower hereby
expressly assents to such compounding should it occur.
3.3. REMEDIES. Upon the occurrence of any event of default,
Lender may: (a) terminate forthwith any indebtedness; and/or (b) declare any
such indebtedness to be forthwith due and payable, whereupon the unpaid
principal amount of such indebtedness, together with accrued interest thereon,
shall become immediately due and payable without presentment, demand or protest,
or other notice of any kind, all of which are hereby expressly waived, anything
contained herein or in any Loan Documents to the contrary withstanding; and/or
(c) proceed to enforce any of its remedies under this Agreement, any Loan
Documents or pursuant to applicable law. No remedy conferred upon or reserved to
Lender herein is intended to be exclusive of any other remedy given under this
Agreement or the Loan Documents, or now or hereafter existing at law or in
equity or by statute.
4. MISCELLANEOUS.
4.1. WAIVER. No delay or failure of Lender, or any holder of the
Note, in exercising any right, power or privilege, nor any single or partial
exercise thereof or any abandonment or discontinuance of steps to endorse such a
right, power or privilege, shall be deemed a waiver of Lender's right to
exercise such power or privilege in the future. The rights of Lender hereunder
are cumulative and not exclusive. Any waiver, permit, consent or approval of any
kind
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by Lender, or any holder of the Note, of any breach or default hereunder must be
in writing and shall be effective only to the extent set forth in such writing.
4.2. NOTICES. All notices, requests and demands given to, or
made upon, any party to this Agreement shall be deemed to have been given or
made when properly deposited in the U. S. Mail and addressed as follows:
If to Borrower: Crystalix Group International, Inc
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, President
Fax No.: (000) 000-0000
If to Lender: Mr. Xxxxx Xxxx
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Fax No.: (000) 000-0000
with a copy to: Xxxxxx & Silver, Ltd.
0000 Xxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
4.3. ATTORNEYS' FEES. Borrower shall reimburse Lender for all
costs, expenses and attorneys' fees expended or incurred by Lender in
negotiating, preparing, amending or enforcing this Agreement or any other Loan
Document, in actions for declaratory relief in any way related to this Agreement
or any other Loan Document, or in collecting any sum which becomes due Lender on
the Note.
4.4. APPLICABLE LAW. This Agreement shall be construed in
accordance with the laws of the State of Nevada.
4.5. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of Borrower and Lender and to their respective heirs,
successors and assigns.
4.6. AMENDMENTS. This Agreement may not be altered or amended,
except with the written consent of each of the parties.
4.7. LENDER'S RELIANCE ON BORROWER'S REPRESENTATION, ETC. All
covenants, warranties, representations and affirmations made by Borrower are
considered material to this Agreement and Lender has relied upon same in
contemplating the extension of credit to Borrower.
4.8. RESPONSIBILITY. If more than one Borrower executes this
Agreement, Borrower's obligations hereunder shall be joint and several.
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4.9. SEVERABILITY. The invalidity or unenforceability of one or
more provisions of this Agreement shall in no way affect the remaining
provisions.
4.10. CONSTRUCTION. The singular shall include the plural; the
plural shall include the singular, unless the context of the Agreement requires
otherwise.
4.11. AMBIGUITY. If there appears to be a conflict in terms or
an ambiguity in terms between the provisions contained with the Note and those
provisions contained within this Agreement, then the terms and provisions of
this Agreement shall control.
4.12. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which, when taken together, will be deemed to be
an original and one and the same instrument. This Agreement will not become
effective until all counterparts hereof have been duly executed by all parties
hereto.
4.13. ARBITRATION. The parties to this Agreement hereby agree
to resolve any dispute involving the interpretation of a provision or term by
arbitration in accordance with the Commercial Rules of the American Arbitration
Association. It is the parties' intent by including this provision to preclude
the filing of an action in the District Court should a dispute regarding a
provision in this Agreement arise.
IN WITNESS WHEREOF, the parties above-mentioned have entered into this
Agreement the day and year first above-mentioned.
BORROWER: LENDER:
Crystalix Group International, Inc.,
a Nevada corporation
By: /s/ XXXX X. XXXXXXXX /s/ XXXXX XXXX
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Xxxx X. Xxxxxxxx, President Xxxxx Xxxx
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