Exhibit 10.18
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT to Loan Agreement is made this 15th day of February,
2001 by and among AARICA HOLDINGS, INC., a Texas corporation ("hereinafter
called "Borrower"), CAROL KOLOZS (hereinafter called "Guarantor") AARICA SPORT,
S.A. de C.V (hereinafter called "Aarica"), TAIMEX INDUSTRIES, S.A. de C. V.
(hereinafter called "Taimex") and SCHMIDT INTERNATIONAL, LLC, a Florida limited
liability (hereinafter called "Lender").
WHEREAS, Borrower, Guarantor and Lender entered into that certain Loan
Agreement dated March 8, 1999 (the "Agreement"), whereby Borrower acknowledged
borrowing $240,000 through its subsidiary Taimex ("Original Loan") and borrowed
an additional $250,000, of which $137,500 has been repaid ("Second Loan"); and
WHEREAS, Lender has advanced an additional $100,000 on October 6, 1999,
$75,000 on October 22, 1999, $50,000 on December 9, 1999, $75,000 on December
14, 1999, $50,000 on January 7, 2000, and $1,137,500 on January 14, 2000; and
WHEREAS, lender has advanced an additional $600,000 on June 27, 2000;
and
WHEREAS, the total outstanding balance as of December 1, 2000 of
$2,600,000 distributed in installments and Lender or Lender's bank also provided
letters of credit (collectively "Third Loan") and Guarantor guaranteed payment
of the First, Second, Third and Fourth Loans and;
WHEREAS, Borrower and/or Aarica desire to borrow from Lender and Lender
desires to lend at Lender's option, to Borrower an additional $611,782 in cash
and $1,273,383.00 in letters of credit issued or provided by Lender or Lender's
bank; and
WHEREAS, Borrower, Lender and Guarantor desire to amend the Agreement
to reflect the additional $611,782 in cash (the "Cash") and $1,273,383.00 in
letters of credit ("Letters of Credit") (the Cash and Letters of Credit
hereinafter called the "Fifth Loan").
NOW THEREFORE, in consideration of the premises herein contained, Ten
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Agreement be amended as follows:
1. A new paragraph is added to Article I which reads as follows:
Further, the Borrower agrees to borrow from, the Lender, and
the Lender agrees to lend to the Borrower, the aggregate sum
of Six Hundred Eleven Thousand Seven Hundred Eighty-two
Dollars ($611,782.00) in cash distributed as follows:
(a) $130,012.00 on April 17, 2000;
(b) $170,770.00 on June 12, 2000;
(c) $130,000 on October 13, 2000;
(d) $180,000 on November 14, 2000;
In addition, the Borrower agrees to borrow from the Lender and the Lender agrees
to lend to the Borrower the aggregates sum of $1,273,383.00 by providing letters
of credit issued as follows:
(a) $195,936.80 on January 21, 2000;
(b) $292,623.84 issued on May 23, 2000;
(c) $148,910.00 issued on August 10, 2000;
(d) $240,135.85 issued on August 22, 2000;
(e) $371,663 issued on September 27, 2000.
Further the Lender acknowledges as of this date, the following letters of
credit/bank acceptances are still outstanding and unpaid:
(a) $240,135.85; (crossed out and initialed by CK and RESJr.)
(b) $371,663 due by March 13, 2001.
1. The first paragraph of Article II is hereby modified to read as follows:
The obligation to repay the Loan shall be evidenced by Borrower's
Promissory Note, Replacement Note, Third Promissory Note, the
Subsidiary Note, Fourth Promissory Note, and the Fifth Promissory Note
hereinafter collectively called the "Note", all in substantially the
form of Exhibit "A" hereto attached.
Except as modified by this Agreement, the Agreement as previously
amended shall remain unchanged in full force and effect, and the parties
reaffirm and ratify their respective obligations thereunder.
The recitals hereto, which the parties acknowledge are true and
correct, are hereby incorporated herein by reference. This agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors, grantees, heirs and
assigns. This Amendment shall be construed and interpreted in accordance with,
and governed by the laws of the State of Florida.
GUARANTORS: BORROWER
AARICA HOLDINGS, INC. a Texas corporation
/s/ Carol Kolozs
Carol Kolozs
By: /s/ Carol Kolozs
Carol Kolozs
AARICA SPORT, S. A. de C.V.
/s/ Carol Kolozs
Carol Kolozs
TAIMEX INDUSTRIES, S. A. de C.V.
/s/ Carol Kolozs
Carol Kolozs
LENDER
/s/ Robert E. Schmidt, Jr.
--------------------------
Robert E. Schmidt, Jr.
SCHMIDT INTRNATIONAL, LLC
/s/ Robert E. Schmidt, Jr.
Robert E. Schmidt, Jr., Member
FIFTH PROMISSORY NOTE
$979,313.00 March 5, 2001
D.,F.,Mexico Mexico
FOR VALUE RECEIVED, the Maker, Aarica Holdings, Inc., a Texas
corporation, promises to pay to the order of the Payee, Schmidt International,
LLC., 4340 W. Hillsborough Ave., #212, Tampa, FL, 33614, the principle sum of
One Million Three Hundred and Eighty-One Dollars and Seventeen Cents
(979,313.00) with interest prime +5% from the date of the Note, payable in a
lump sum balloon payment of the remaining unpaid principle and accrued interest
due without demand on the earlier of (i) the initial public offer of Maker's
stock or (ii) May 15th , 2001.
This Note may be paid in advance, in whole or in part, without premium
or penalty. Each payment, including any advance payment, shall be applied first
to payment of accrued interest and them to payment of the principal installment
or installments last becoming due.
This Note is payable at the address of the Payee as stated herein, or
at such other place as the holder hereof may from time to time designate in
writing to the Maker.
If a payment required by this Note is not made when due, or within ten
(10) days thereafter, then the holder may declare the entire unpaid balance of
this Note accelerated and due and payable forthwith, and the failure to exercise
said option shall not waive the right to exercise said option in the event of a
continuing or subsequent default.
The Maker promises to pay all costs of collection, including expenses
of litigation, appeals and attorneys' fees (including bankruptcy and appellate
proceedings), reasonably incurred by the holder hereof because of the failure of
the Maker to comply with the agreements in this Not or any agreement pursuant to
which this Note is given, or either. Presentment, protest, notice of dishonor,
and notice of protest are hereby waived.
This note is subject to the terms of that certain Loan Agreement as
amended between the parties hereto.
MAKER HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
CIRCUIT COURT OF THE STATE OF FLORIDA, COUNTY OF ORANGE, AND THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT FO FLORIDA IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OF THE DOCUMENTS EXECUTED IN
CONNECTION HEREWITH, AND MAKER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH FLORIDA
STATE OR FEDERAL COURT. MAKER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING. MAKER ALSO IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS TO MAKER BY REGISTERED OR EXPRESS MAIL, RETURN
RECEIPT REQUESTED, AT HIS ADDRESS SPECIFIED HEREIN. SUCH SERVICE WILL BECOME
EFFECTIVE THREE (3) BUSINESS DAYS AFTER SUCH MAILING AND WILL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE ON MAKER IN SUCH ACTION OR PROCEEDING. MAKER AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY MANNER
PROVIDED BY LAW.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF PAYEE TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF PAYEE TO
BRING ANY ACTION OR PROCEEDING AGAINST MAKER OR ITS PROPERTY IN THE COURTS OF
ANY OTHER JURISDICTION.
MAKER, BY ITS ACCEPTANCE HEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY AGREEMENT EXECUTED IN CONNECTION HEREWITH OR IN
CONNECTION WITH ANY DEFENSE, COUNTERCLAIM OR CROSS CLAIM ASSERTED BY MAKER IN
ANY SUCH LITIGATION.
MAKER:
AARICA HOLDINGS, INC., a Texas corporation
By: /s/ Carol Kolozs
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Carol Kolozs, President
GUARANTOR:
/s/ Carol Kolozs
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Carol Kolozs