Exhibit 10.5
THIS INSTRUMENT PREPARED BY: ------------
Xxxxxx X. Xxxxxxxx, Esq.
XXXXXXX & WATTWOOD, PA.
0000 X. XXXXX XXXX XXXXX
XXXXXXXXX, XX 00000
(000) 000-0000
LOAN AGREEMENT
THIS LOAN AGREEMENT is made the 4th day of October, 1 996, in favor of
First Union National Bank of Florida, whose address is 000 X. Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxx 00000 (hereinafter called "Lender"), by KTA
MANAGEMENT, INC., a Florida corporation, whose address is 000 X. Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000 (hereinafter called "Borrower"), and by
SYMETRICS INDUSTRIES, INC., a Florida corporation, whose address is 000 X.
Xxxxxx Xxxx Xxxx., Xxxxxxxxx, Xxxxxxx 00000 (hereinafter called "Guarantor").
In consideration of Lender making a loan of $1,000,000.00 to Borrower (the
"Loan "), as evidenced by a Real Estate Promissory Note of even date herewith:
1. Borrower and Guarantor agree as follows:
(a) Borrower shall deliver to Lender, within thirty (30) days of filing,
complete copies of federal and state tax returns, as applicable, each which
shall be signed and certified by Borrower to be true, correct and complete
copies of such returns. In the event an extension is filed, Borrower shall also
deliver a copy of such extension within thirty (30) days of filing.
(b) Guarantor shall furnish to Lender, within thirty (30) days after the
end of each fiscal semi-annual period, a profit and loss statement and
reconciliation of surplus statement of the Guarantor for such period, a balance
sheet for such period, a complete and accurate listing and aging of all of the
Guarantors accounts receivable, and a work-in-process/contract backlog report as
of the last day of the fiscal semi-annual period then ended, prepared in
accordance with generally accepted accounting principles and certified by the
Chief Financial Officer of the Guarantor as being true and accurate.
(c) Guarantor shall furnish to Lender within ninety (90) days after the
end of each fiscal year, a profit and loss statement and reconciliation of
surplus statement of the Guarantor for such year, and a balance sheet as of the
end of such year, audited by independent certified public accounts of recognized
standing selected by the Guarantor and satisfactory to Lender, Reports shall be
prepared in accordance with generally accepted accounting principles and
certified by the Chief Financial Officer of the Guarantor as being true and
correct.
(d) Guarantor shall deliver to Lender, within thirty (30) days of
filing, complete copies of federal and state tax returns, as applicable, each of
which shall be signed and certified by Guarantor to be true, correct and
complete copies of such returns. In the event an extension is filed, Guarantor
shall also deliver a copy of such extension within thirty (30) days of filing.
(e) Guarantor shall, at all times, maintain a Current Ratio of not less
than 1.50 to 1.00 to be tested upon fiscal year end. "Current Ratio" shall mean
the ratio of current assets divided by current liabilities.
(f) Guarantor shall, at all times, during the term of the Loan, maintain
a debt to worth ratio of no greater than 2 to 1, to be tested upon fiscal year
end.
(g) Guarantor will maintain its primary depository relationship with
Lender.
(h) Guarantor shall not make a change in the chairman/president of the
company, specifically the chief executive officer, Xxxxxx X. Xxxxxx, Xx.
30
(i) Guarantor shall deliver to Lender, with the annual and semi-annual
financial statements required above, a certification by Guarantor's independent
certified public accountant that Guarantor is in full compliance with the
Mortgage, Note, Guaranty, this Loan Agreement and the Loan Documents associated
therewith.
(j) A default in the payment or performance of any obligation under any
other loans, contracts or agreements of Guarantor, any subsidiary or affiliate
of Guarantor, any general partner of or the holders of the majority owner
interests of Guarantor, with First Union or its affiliates, shall be a default
under this Agreement, the Note, the Mortgage, the Guaranty, and all other Loan
Documents associated therewith.
2. ACCELERATION. Lender shall have the option to declare the entire
unpaid amount of the Loan and accrued interest immediately due and payable,
without presentment, demand, or notice of any kind, if any of the provisions
contained in this Agreement are breached.
3. WAIVER. No failure or delay on the part of Lender in exercising any
power or right hereunder, and no failure of Lender to give Borrower or Guarantor
notice of default hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power preclude any other or
further exercise thereof or the exercise of any other right or power hereunder.
No modification or waiver of any provision of this Agreement or any instrument
executed pursuant hereto or consent to any departure by Borrower or Guarantor
from this Agreement or such instrument shall in any event be effective unless
the same shall be in writing, and such waiver or consent shall be effective only
in the specific instance and for the particular purpose for which given.
4. BENEFIT. This Agreement shall be binding upon and shall inure to the
benefit of Borrower, Guarantor and Lender and their respective successors and
assigns. Lender may assign this Agreement in whole or in part with any
assignment of the loan. Borrower and Guarantor may not assign this Agreement or
its obligations under the loan without Lender's written consent.
5. This Agreement shall be governed and construed in accordance with
the laws of the State of Florida, and any litigation arising out of or relating
to this Agreement or the loan shall be commenced and conducted in the courts of
that State or in the federal courts of that State.
6. WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, THE UNDERSIGNED
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY AGREES THAT: (A) NEITHER THE
UNDERSIGNED NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF THE
SAME SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY
OTHER LITIGATION PROCEDURE ARISING FROM OR BASED UPON THIS AGREEMENT, ANY OTHER
LOAN AGREEMENT OR ANY LOAN DOCUMENT EVIDENCING, SECURING OR RELATING TO THE
OBLIGATIONS OR TO THE DEALINGS OR RELATIONSHIP BETWEEN OR AMONG THE PARTIES
THERETO; (B) NEITHER THE UNDERSIGNED NOR LENDER WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED; (c) THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIE~ HERETO, AND THESE PROVISIONS
SHALL BE SUBJECT TO NO EXCEPTIONS; (D) NEITHER THE UNDERSIGNED NOR LENDER HAS IN
ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF
THIS PARAGRAPH WILL NOT BE FULLY ENFORCLD IN ALL INSTANCES; AND (E) THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THIS TRANSACTION.
IN WITNESS WHEREOF, Borrower has hereunto set its hand and seal the day
and year first above written.
BORROWER:
Signed, sealed and delivered KTA MANAGEMENT, INC.,
in the presence of: a Florida corporation
/S/ By: /S/ M.A. Xxxxxxxxx
-------------------------------- --------------------------------
Witness: M.A. XXXXXXXXX, as its President
/S/
--------------------------------
Witness:
31
GUARANTOR:
Signed, sealed and delivered SYMETRICS INDUSTRIES, INC.,
in the presence of: a Florida corporation
/S/ By: /S/ Xxxxxx X. Xxxxxx
-------------------------------- -----------------------------------
Witness: Xxxxxx X. Xxxxxx, Xx., as President
/S/
--------------------------------
Witness:
32
