EXHIBIT 10(a)
FIFTH AMENDMENT TO LOAN AGREEMENT
---------------------------------
THIS AMENDMENT is made as of the 20th day of August, 1997, by and between
XXXXX MART, INC. (the "Borrower") and XXXXXXX BANK, N.A. (the "Bank").
Recitals
The Borrower and the Bank entered into an Amended and Restated Loan
Agreement (as amended from time to time, the "Loan Agreement") dated as of June
29, 1993, pursuant to which the Bank has provided a credit facility to the
Borrower. The parties amended the Loan Agreement as of June 29, 1994, June 29,
1995, September 20, 1995 and June 4, 1996, and the parties wish to further amend
the Loan Agreement in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the parties
agree as follows:
1. Article I of the Loan Agreement is hereby amended so that, from
and after the date hereof, such Article shall read as follows:
ARTICLE I
BORROWING AND PAYMENT
---------------------
1.01 Revolving Credit Advances.
(a) Revolving Line of Credit. The Bank hereby establishes in favor of
the Borrower a revolving line of credit. The Borrower shall be entitled to
borrow, repay and reborrow funds from the Bank in accordance with the terms
hereof so long as the total principal amount owed to the Bank under the
revolving line of credit does not exceed $40,000,000.00 (or such lesser
amount as is set forth herein) (the "Revolving Credit Amount") from the
date hereof through June 29, 2000. The Bank's obligation to make advances
under the revolving line of credit shall terminate on June 29, 2000, or
such earlier date as is set forth herein (the "Revolving Credit Expiration
Date"). This indebtedness shall be evidenced by a promissory note dated
August 20, 1997 (as amended, extended or renewed from time to time, the
"Revolving Note") executed by the Borrower in favor of the Bank in the
original principal amount of $40,000,000.00. The Revolving Note shall bear
interest at the rate set forth therein and shall be payable as set forth
therein.
(b) Advances. The Bank shall make all advances under the Revolving
Note by crediting the Borrower's account maintained with the Bank. Each
advance under the Revolving Note shall be made by the Bank in an amount
necessary to cover (i) all checks and drafts of the
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Borrower presented to the Bank for payment and properly chargeable
to the Borrower, and (ii) all interest and facility fees to be charged to
the Borrower, with written confirmation by the Bank of debits and credits
to such account. The Bank shall not be required to make any advance
hereunder or under the Revolving Note if as of the time of such advance:
(i) the Bank's obligation to make advances hereunder has terminated or
expired; (ii) a Default or Event of Default (as hereinafter defined) has
occurred; or (iii) any condition to the advance set forth herein or in any
other Loan Document (as hereinafter defined) has not been satisfied.
(c) Commitment Fee. The Borrower shall pay the Bank a commitment fee
on the daily average unused amount of the revolving line of credit
evidenced by the Revolving Note during the term of the line of credit until
the expiration or termination of such line of credit at the rate of one
eighth of one percent (0.125%) per annum (calculated on the basis of a 365
day year). The Borrower shall pay the fee quarterly in arrears within 15
days after each September 30, December 31, March 31, and June 30 during the
term of the line of credit and on the termination or expiration of the line
of credit.
1.02 Seasonal Credit Advances.
(a) Seasonal Line of Credit. The Bank hereby establishes in favor of
the Borrower a seasonal line of credit. The Borrower shall be entitled to
borrow, repay and reborrow funds from the Bank in accordance with the terms
hereof under the seasonal line of credit during each Seasonal Period (as
defined herein). For purposes hereof, a "Seasonal Period" shall mean: (i)
each period commencing on March 15 of each year and ending on June 30 of
such year; (ii) each period commencing on September 15 of each year and
ending on December 31 of such year; and (iii) such other periods as the
Bank may, upon request of the Borrower, designate as Seasonal Periods by
written notice to the Borrower. No Seasonal Period shall in any event
extend beyond or occur after June 29, 2000, and the Borrower shall not in
any event be entitled to obtain advances under the seasonal line of credit
on or after June 30, 2000. The total principal amount owed to the Bank
under the seasonal line of credit shall not at any time exceed
$10,000,000.00 (or such lesser amount as is set forth herein) during any
Seasonal Period. This indebtedness shall be evidenced by a promissory note
dated August 20, 1997 (as amended, extended or renewed from time to time,
the "Seasonal Note") executed by the Borrower in favor of the Bank in the
original principal amount of $10,000,000.00. The Seasonal Note shall bear
interest at the rate set forth therein and shall be payable as set forth
therein.
(b) Advances.
(i) The Bank shall make all advances under the Seasonal Note by
crediting the Borrower's account maintained with the Bank. The Bank shall
not be required to make any advance hereunder or under the Seasonal Note if
as of the time of such advance: (aa) the Bank's obligation to make advances
hereunder has terminated or expired; (bb) a Default or Event
15
of Default (as hereinafter defined) has occurred; or (cc) any condition to
the advance set forth herein or in any other Loan Document (as hereinafter
defined) has not been satisfied.
(ii) The parties agree that the Borrower shall not be entitled to
obtain any advances under the Seasonal Note unless: (aa) the outstanding
principal balance under the Revolving Note, together with the face amount
of outstanding drafts accepted by the Bank pursuant to Section 1.03 hereof,
is $40,000,000; and (bb) all other conditions to advances under the
Seasonal Note have been satisfied. The parties further agree that all
principal payments under the Revolving Note and the Seasonal Note shall be
applied first to the Seasonal Note for so long as principal amounts are
outstanding thereunder and then to the Revolving Note.
(c) Commitment Fee. The Borrower shall pay the Bank a commitment fee
on the daily average unused amount of the seasonal line of credit evidenced
by the Seasonal Note during each Seasonal Period at the rate of one-eighth
of one percent (0.125%) per annum (calculated on the basis of a 365 day
year). The Borrower shall pay the fee quarterly in arrears within 15 days
after each September 30, December 31, March 31, and June 30 during the term
of the line of credit and on the termination or expiration of the line of
credit.
1.03 Acceptances. Subject to the terms set forth herein and in that
certain Acceptance Credit Agreement dated June 29, 1992, as amended or
restated from time to time, between the Borrower and the Bank (as amended or
restated from time to time, the "Acceptance Agreement"), prior to the Revolving
Credit Expiration Date, the Bank shall from time to time make available to the
Borrower an acceptance facility pursuant to which the Bank may accept drafts
drawn upon it by the Borrower (each an "Acceptance") pursuant to the Acceptance
Agreement. The aggregate face amount of outstanding drafts drawn by the Borrower
and accepted by the Bank pursuant to the Acceptance Agreement shall not at any
one time exceed $25,000,000.00. In addition, such aggregate face amount of
outstanding drafts, when combined with amounts outstanding under the Revolving
Note, shall not at any one time exceed the Revolving Credit Amount. Upon any
issuance of an Acceptance hereunder, and for so long as such Acceptance is
outstanding, the amount available for advances under the Revolving Note shall be
immediately reduced by the face amount of such Acceptance. The Bank shall not be
required to issue any Acceptance which has a maturity date after the Revolving
Credit Expiration Date. Upon the Bank's payment of an Acceptance upon maturity
thereof, an advance under the Revolving Note shall be made to the Bank to
reimburse it for such payment. If any outstanding Acceptance matures after the
Revolving Credit Expiration Date or if funds are not then available for advances
under the Revolving Note, the Borrower shall upon maturity reimburse the Bank
for the face amount of the Acceptance and for such other amounts as may be due
in connection therewith in accordance with the Acceptance Agreement. The parties
acknowledge that the Bank may at any time sell, rediscount or otherwise dispose
of any Acceptances discounted by it.
16
1.04 Letters of Credit. The Bank hereby establishes a letter of credit
facility in an amount not to exceed $4,000,000.00 for the issuance of standby
and commercial letters of credit (the "Letters of Credit"). From time to time
prior to June 30, 1998, the Bank, upon the Borrower's request, may issue Letters
of Credit. The Borrower shall give the Bank at least one business day's notice
prior to requesting the issuance of any Letter of Credit, and shall, with such
request, fill out an application in form acceptable to the Bank and execute such
terms, conditions and reimbursement agreements (each, a "Reimbursement
Agreement") concerning such Letter of Credit as the Bank may require. The amount
available under the letter of credit facility shall be reduced by the face
amount of outstanding Letters of Credit (together with the amount of drafts
under Letters of Credit no longer outstanding for which the Bank has not been
reimbursed). No Letter of Credit shall be issued which could be drawn on after
the Revolving Credit Expiration Date. In the event of a draw on a Letter of
Credit, an advance under the Revolving Note or, if advances are available
thereunder, under the Seasonal Note, shall be made to the extent that amounts
are then available for borrowing under such notes to reimburse the Bank for such
draw. If any draw is made under any Letter of Credit after the Revolving Credit
Expiration Date or if funds are not then available for advances under such
notes, the Borrower shall immediately upon demand reimburse the Bank for the
amount of the draw together with interest thereon and such other amounts as may
be due under any applicable Reimbursement Agreement. As to any Letter of Credit
issued, the Borrower agrees to pay the Bank upon demand any applicable fees
assessed by the Bank in connection therewith, including, without limitation,
issuance fees and negotiation fees. The Bank shall not in any event be required
to issue a Letter of Credit after the occurrence of a Default or Event of
Default hereunder.
1.05 Other Documents and Related Terms. For purposes of this
Agreement, the following terms shall have the following meanings:
(a) "Indebtedness" shall mean all obligations of the Borrower to the
Bank now or hereafter due under the Note and the other Loan Documents.
(b) "Loan Documents" shall mean and include this Loan Agreement (as
amended or restated from time to time), the Revolving Note, the Seasonal
Note, each Letter of Credit, each Reimbursement Agreement, each Acceptance,
the Acceptance Agreement, the Insurance Assignments (as hereinafter
defined) and all documents related to the foregoing documents.
(c) "Note" shall mean each of and both of the Revolving Note and
the Seasonal Note.
(d) "Subsidiary" shall mean and include any partnership, corporation
or other entity if the Borrower at any time on or after the date hereof
directly or indirectly owns or controls a majority of the equity or voting
interests in such partnership, corporation or entity.
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2. The Borrower certifies that as of the date hereof: (a) all of its
representations and warranties in the Loan Agreement are true and correct as if
made on the date hereof; and (b) no Default or Event of Default has occurred
under the Loan Agreement. The Loan Agreement shall continue in full force and
effect except as modified herein.
DATED the day and year first above written.
XXXXX MART, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Its: Sr. Vice Presient/ Chief Financial Officer
------------------------------------------
XXXXXXX BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Its: Vice President
-------------------------------------------
00
XXXXX XX XXXXXXX
XXXXXX XX XXXXXX
The foregoing instrument was executed, acknowledged and delivered before
me this 20th day of August, 1997, by Xxxxx X. Xxxxx, the Senior Vice
President of Xxxxx Mart, Inc., on behalf of the corporation, in Camden County,
Georgia.
/s/ V. Xxxxxx Xxxxxxxx
------------------------------------
Notary Public, State and County aforesaid
Print Name: V. Xxxxxx Xxxxxxxx
Notary Public,
Camden County, Georgia
My Commission Expires: January 16, 2000
[Notary Seal]
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered before
me this 20th day of August, 1997, by Xxxxx Xxxxxxx, the Vice President of
Xxxxxxx Bank, N.A., on behalf of the bank, in Camden County, Georgia.
/s/ V. Xxxxxx Xxxxxxxx
------------------------------------
Notary Public, State and County aforesaid
Print Name: V. Xxxxxx Xxxxxxxx
Notary Public,
Camden County, Georgia
My Commission Expires: January 16, 2000
[Notary Seal]
19
RENEWAL PROMISSORY NOTE
$40,000,000.00 August 20, 1997
Camden County, Georgia
FOR VALUE RECEIVED, the undersigned, XXXXX MART, INC., a Florida
corporation (the "Borrower"), hereby promises to pay to the order of XXXXXXX
BANK, N.A. (the "Lender"), whose address is 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, the principal sum of Forty Million and 00/100 Dollars
($40,000,000.00), together with interest on the outstanding principal
balance hereof at the rate provided herein. This Note shall be governed by
the following provisions:
1. Advances. During the period commencing on the date hereof and
continuing through June 29, 2000 (the "Revolving Period"), the loan evidenced by
this Note shall be a revolving loan. The Borrower may borrow, repay and reborrow
principal amounts hereunder during the Revolving Period subject to the terms
contained herein and in the Loan Agreement (as hereinafter defined).
Notwithstanding the foregoing, the outstanding principal balance hereof shall
not exceed $40,000,000.00 at any one time. The Borrower shall not be permitted
to obtain further advances hereunder from and after June 30, 2000.
2. Payments.
(a) The Borrower shall pay all accrued interest hereunder on the
first day of each July, October, January and April during the term hereof.
(b) The Borrower shall repay principal hereunder in quarterly
installments on the first day of each July, October, January and April,
commencing on July 1, 2000, and continuing through April 1, 2004. Each
principal installment shall be equal to 1/16th of the outstanding principal
balance of this Note as of June 30, 2000.
(c) The Borrower shall pay all remaining outstanding principal
hereunder, together with all then accrued and unpaid interest, on
April 1, 2004.
3. Interest.
(a) Interest shall initially accrue on the outstanding
principal balance of this Note at a rate of 6.01% per annum. The
rate of interest shall be adjusted on each Interest Rate
Adjustment Date (as defined herein) so that interest shall accrue
at the Adjusted Libor Rate (as defined herein) for the Interest
Period (as defined herein) commencing on such Interest Rate
Adjustment Date. For purposes of this paragraph, the following
terms shall have the following meanings:
(i) "Adjusted Libor Rate" for each Interest Period shall mean a
daily rate that is 0.35% per annum over the applicable Libor Rate. The
-------------------------------------------------------------------------------
THIS NOTE RENEWS AND MODIFIES THAT CERTAIN PROMISSORY NOTE DATED JUNE 4, 1996,
IN THE ORIGINAL PRINCIPAL AMOUNT OF $40,000,000.00 EXECUTED BY THE BORROWER IN
FAVOR OF THE LENDER.
20
Libor Rate for each Interest Period shall mean the offered rate for
deposits in United States dollars in the London Interbank market for a
one month period which appears on the Libor Rate Reference Page (as
defined herein) as of 11:00 a.m. (London time) on the day that is two
London Banking Days (as defined herein) preceding the first Banking
Business Day (as defined herein) of the Interest Period. If at least two
such offered rates appear on the Libor Rate Reference Page, the rate will
be the arithmetic mean of such offered rates. The Bank may, in its
discretion, use rate quotations for daily periods in lieu of quotations
for substantially equivalent monthly periods.
(ii) "Banking Business Day" shall mean each day other than a
Saturday, a Sunday or any holiday on which commercial banks in
Jacksonville, Florida are closed for business.
(iii) "Interest Period" shall mean each period commencing on
each Interest Rate Adjustment Date and ending on the next Interest Rate
Adjustment Date.
(iv) "Interest Rate Adjustment Date" shall mean the first day of
September, 1997, and the first day of each calendar month thereafter.
(v) "Libor Rate Reference Page" shall mean any of the following
reference pages or sources (as selected from time to time by the
Bank in its discretion): (aa) the Reuters Screen LIBO Page; (bb) the Dow
Xxxxx Telerate Page 3750; or (cc) such other index or source as the Bank
may in its sole discretion select showing rates offered for United States
dollar deposits in the London Interbank market.
(vi) "London Banking Day" shall mean each day other than a Saturday,
a Sunday or any holiday on which commercial banks in London, England are
closed for business.
(b) Notwithstanding the foregoing subparagraph (a), the
Borrower may elect to pay interest on all or a portion of the
outstanding principal hereunder for periods of 30 days each
(each, an "Alternate Interest Period") at an Alternate Interest
Rate (as defined herein). The Borrower may make such election by
providing telephonic notice thereof to the Bank at least two
business days before the commencement of the Alternate Interest
Period. The notice shall be provided to such individual at such
telephone number as the Bank may from time to time specify, and
the Bank's internal records as to the delivery and contents of
such notice shall be conclusive evidence thereof. The notice
shall state: (i) the date upon which the Alternate Interest
Period shall commence (which shall in all events be the first day
of a calendar month); and (ii) the aggregate principal amount
which shall bear interest at the Alternate Interest Rate (which
amount is referred to herein as the "Alternate Interest Amount").
If the Borrower duly elects for interest to accrue hereunder at
the Alternate Interest Rate, then interest shall accrue at the
Alternate Interest Rate on the applicable Alternate Interest
Amount during the applicable Alternate Interest Period. Any
election hereunder shall be irrevocable during the term of the
Alternate Interest Period. At the expiration of the Alternate
21
Interest Period, interest shall accrue at the rate set forth in
subparagraph (a) above except to the extent that the Borrower
duly elects for interest to thereafter accrue at the Alternate
Interest Rate. For purposes hereof, the Alternate Interest Rate
shall mean a rate equal to the Prime Rate (as defined herein)
less 1.50% per annum. The Prime Rate shall be the interest rate
announced from time to time by Xxxxxxx Xxxxx, Inc. as its prime
rate. For purposes of this Note, any change in the Prime Rate
shall be effective as of the Bank's opening of business on the
effective date of the change.
(c) Interest shall be calculated on the basis of a 365 day
year (based upon the actual number of days elapsed).
(d) The total liability of the Borrower and any endorsers or
guarantors hereof for payment of interest shall not exceed any
limitations imposed on the payment of interest by applicable
usury laws. If any interest is received or charged by any holder
hereof in excess of that amount, the Borrower shall be entitled
to an immediate refund of the excess.
(e) Upon the occurrence of an Event of Default hereunder,
interest shall accrue at the Default Rate hereinafter set forth
notwithstanding the provisions of this section.
4. Prepayment. The Borrower shall be entitled to prepay this Note in
whole or in part at any time without penalty. Prepayments of principal after
termination of the Revolving Period shall be applied in the inverse order of
principal payments required hereunder.
5. Application of Payments. All payments hereunder shall be applied
first to the Lender's costs and expenses, then to fees authorized hereunder or
under the Loan Agreement, then to interest and then to principal.
6. Default. Any Event of Default under the Amended and Restated Loan
Agreement (the "Loan Agreement") between the Borrower and the Lender dated as of
June 29, 1993, as the same may be amended or restated from time to time, shall
be considered an "Event of Default" hereunder. If any Event of Default shall
occur, the Lender may, without notice to the Borrower (i) refuse to advance any
more funds hereunder or under the Loan Agreement; and (ii) declare the
outstanding principal of this Note, all interest thereon and all other amounts
payable under this Note or otherwise to be forthwith due and payable. Thereupon,
this Note, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower. Sixty (60) days
after the earlier to occur of (i) the date of a payment default hereunder which
has not been cured, or (ii) the date of an acceleration of all sums due
hereunder after the occurrence of an Event of Default, all outstanding principal
hereunder, and accrued and unpaid interest and other charges hereunder, shall
bear interest at the rate of either two percent (2%) per annum above the Prime
Rate until paid or, if such rate is usurious under the laws of Florida, then at
the highest legal rate permissible thereunder (the "Default Rate").
22
7. Expenses. All parties liable for the payment of this Note agree
to pay the Lender all costs incurred by it in connection with the collection of
this Note. Such costs include, without limitation, fees for the services of
counsel and legal assistants employed to collect this Note, whether or not suit
be brought, and whether incurred in connection with collection, trial, appeal or
otherwise. All such parties further agree to indemnify and hold the Lender
harmless against liability for the payment of state documentary stamp taxes,
intangible taxes or other taxes (including interest and penalties, if any),
excluding income or service taxes of the Lender, which may be determined to be
payable with respect to this transaction.
8. Renewal Obligation. This Note is a renewal obligation as set
forth on the face hereof. Nothing set forth herein or otherwise shall impair the
Borrower's obligation to pay all accrued and unpaid interest under any note
renewed hereby, and all such interest shall be due and payable on October 1,
1997.
9. Miscellaneous. The Borrower shall make all payments hereunder in
lawful money of the United States at the Lender's address set forth herein or at
such other place as the Lender may designate in writing. The remedies of the
Lender as provided herein shall be cumulative and concurrent, and may
be pursued singly, successively or together, at the sole discretion of
the Lender and may be exercised as often as occasion therefor shall arise.
No act of omission or commission of the Lender, including specifically any
failure to exercise any right, remedy or recourse, shall be effective, unless
set forth in a written document executed by the Lender, and then only to
the extent specifically recited therein. A waiver or release with reference
to one event shall not be construed as continuing, as a bar to, or as a
waiver or release of any subsequent right, remedy or recourse as to any
subsequent event. This Note shall be construed and enforced in accordance with
Florida law and shall be binding on the successors and assigns of the parties
hereto. The term "Lender" as used herein shall mean any holder of this Note.
The Lender may, at its option, round any or all fractional amounts under
Section 3 upwards to the next higher 1/100 of 1%.
The Borrower hereby: (i) waives demand, notice of demand, presentment for
payment, notice of nonpayment or dishonor, protest, notice of protest and all
other notice, filing of suit and diligence in collecting this Note; (ii) agrees
to any substitution, addition or release of any party or person primarily or
secondarily liable hereon; and (iii) agrees that the Lender shall not be
required first to institute any suit, or to exhaust his, their or its remedies
against the Borrower or any other person or party to become liable hereunder, or
against any collateral in order to enforce payment of this Note.
23
This Note is the Revolving Note referred to in the Loan Agreement.
XXXXX MART, INC.
By /s/ Xxxxx X. Xxxxx
---------------------------------------------
Its Sr. Vice President/ Chief Financial Officer
-------------------------------------------
(CORPORATE SEAL)
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this 20th day of August, 1997, by Xxxxx X. Xxxxx the Senior
Vice President of Xxxxx Mart, Inc., a Florida corporation, on behalf of the
corporation, in Camden County, Georgia.
/s/ V. Xxxxxx Xxxxxxxx
------------------------------
Notary Public, State and County
aforesaid
Print Name: V. Xxxxxx Xxxxxxxx
Notary Public, Camden County, Georgia
My Commission Expires: January 16, 2000
[Notary Seal]
24
SEASONAL PROMISSORY NOTE
$10,000,000.00 August 20, 1997
Camden County, Georgia
FOR VALUE RECEIVED, the undersigned, XXXXX MART, INC., a Florida
corporation (the "Borrower"), hereby promises to pay to the order of XXXXXXX
BANK, N.A. (the "Lender"), whose address is 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, the principal sum of Ten Million and 00/100 Dollars
($10,000,000.00), together with interest on the outstanding principal balance
hereof at the rate provided herein. This Note shall be governed by the following
provisions:
1. Advances. During each Seasonal Period (as defined in the Loan
Agreement), the loan evidenced by this Note shall be a revolving loan. The
Borrower may borrow, repay and reborrow principal amounts hereunder during each
Seasonal Period subject to the terms contained herein and in the Loan Agreement
(as hereinafter defined). Notwithstanding the foregoing, the outstanding
principal balance hereof shall not exceed $10,000,000.00 at any one time. The
Borrower shall not be permitted to obtain further advances hereunder during any
period that is not a Seasonal Period. The Borrower shall not in any event be
entitled to obtain further advances hereunder from and after June 30, 2000.
2. Payments.
(a) The Borrower shall pay all outstanding principal hereunder,
together with all then accrued and unpaid interest, immediately upon the
expiration of each Seasonal Period.
(b) The Borrower shall pay all then outstanding principal
hereunder, together with all then accrued and unpaid interest, on June 30, 2000.
3. Interest.
(a) Interest shall initially accrue on the outstanding principal balance of
this Note at a rate of 6.01% per annum. The rate of interest shall be adjusted
on each Interest Rate Adjustment Date (as defined herein) so that interest shall
accrue at the Adjusted Libor Rate (as defined herein) for the Interest Period
(as defined herein) commencing on such Interest Rate Adjustment Date. For
purposes of this paragraph, the following terms shall have the following
meanings:
(i) "Adjusted Libor Rate" for each Interest
Period shall mean a daily rate that is 0.35% per annum
over the applicable Libor Rate. The Libor Rate for each
Interest Period shall mean the offered rate for deposits
in United States dollars in the London Interbank market
for a one month period which appears on the Libor Rate
Reference Page (as defined herein) as of 11:00 a.m.
(London time) on the day that is two London Banking Days
(as defined herein) preceding the first Banking Business
Day (as defined herein) of the Interest Period. If at
least two such offered rates appear on the Libor Rate
25
Reference Page, the rate will be the arithmetic mean of
such offered rates. The Bank may, in its discretion, use
rate quotations for daily periods in lieu of quotations
for substantially equivalent monthly periods.
(ii) "Banking Business Day" shall mean each
day other than a Saturday, a Sunday or any holiday on
which commercial banks in Jacksonville, Florida are
closed for business.
(iii) "Interest Period" shall mean each
period commencing on each Interest Rate Adjustment Date
and ending on the next Interest Rate Adjustment Date.
(iv) "Interest Rate Adjustment Date" shall
mean the first day of September, 1997, and the first day
of each calendar month thereafter.
(v) "Libor Rate Reference Page" shall mean
any of the following reference pages or sources (as
selected from time to time by the Bank in its
discretion): (aa) the Reuters Screen LIBO Page; (bb) the
Dow Xxxxx Telerate Page 3750; or (cc) such other index
or source as the Bank may in its sole discretion select
showing rates offered for United States dollar deposits
in the London Interbank market.
(vi) "London Banking Day" shall mean each
day other than a Saturday, a Sunday or any holiday on
which commercial banks in London, England are closed for
business.
(b) Notwithstanding the foregoing subparagraph (a), the
Borrower may elect to pay interest on all or a portion of the
outstanding principal hereunder for periods of 30 days each (each,
an "Alternate Interest Period") at an Alternate Interest Rate (as
defined herein). The Borrower may make such election by providing
telephonic notice thereof to the Bank at least two business days
before the commencement of the Alternate Interest Period. The
notice shall be provided to such individual at such telephone
number as the Bank may from time to time specify, and the
Bank's internal records as to the delivery and contents of such
notice shall be conclusive evidence thereof. The notice shall state:
(i) the date upon which the Alternate Interest Period shall commence
(which shall in all events be the first day of a calendar month);
and (ii) the aggregate principal amount which shall bear interest at
the Alternate Interest Rate (which amount is referred to herein as
the "Alternate Interest Amount"). If the Borrower duly elects for
interest to accrue hereunder at the Alternate Interest Rate, then
interest shall accrue at the Alternate Interest Rate on the
applicable Alternate Interest Amount during the applicable Alternate
Interest Period. Any election hereunder shall be irrevocable during
the term of the Alternate Interest Period. At the expiration of the
Alternate Interest Period, interest shall accrue at the rate set
forth in subparagraph (a) above except to the extent that the
Borrower duly elects for interest to thereafter accrue at the
Alternate Interest Rate. For purposes hereof, the Alternate Interest
26
Rate shall mean a rate equal to the Prime Rate (as defined herein)
less 1.50% per annum. The Prime Rate shall be the interest rate
announced from time to time by Xxxxxxx Xxxxx, Inc. as its prime
rate. For purposes of this Note, any change in the Prime Rate shall
be effective as of the Bank's opening of business on the effective
date of the change.
(c) Interest shall be calculated on the basis of a 365
day year (based upon the actual number of days elapsed).
(d) The total liability of the Borrower and any
endorsers or guarantors hereof for payment of interest shall not
exceed any limitations imposed on the payment of interest by
applicable usury laws. If any interest is received or charged by any
holder hereof in excess of that amount, the Borrower shall be
entitled to an immediate refund of the excess.
(e) Upon the occurrence of an Event of Default
hereunder, interest shall accrue at the Default Rate hereinafter set
forth notwithstanding the provisions of this section.
4. Prepayment. The Borrower shall be entitled to prepay this Note in
whole or in part at any time without penalty.
5. Application of Payments. All payments hereunder shall be applied
first to the Lender's costs and expenses, then to fees authorized hereunder or
under the Loan Agreement, then to interest and then to principal.
6. Default. Any Event of Default under the Amended and Restated Loan
Agreement (the "Loan Agreement") between the Borrower and the Lender dated as of
June 29, 1993, as the same may be amended or restated from time to time, shall
be considered an "Event of Default" hereunder. If any Event of Default shall
occur, the Lender may, without notice to the Borrower (i) refuse to advance any
more funds hereunder or under the Loan Agreement; and (ii) declare the
outstanding principal of this Note, all interest thereon and all other amounts
payable under this Note or otherwise to be forthwith due and payable. Thereupon,
this Note, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower. Sixty (60) days
after the earlier to occur of (i) the date of a payment default hereunder which
has not been cured, or (ii) the date of an acceleration of all sums due
hereunder after the occurrence of an Event of Default, all outstanding principal
hereunder, and accrued and unpaid interest and other charges hereunder, shall
bear interest at the rate of either two percent (2%) per annum above the Prime
Rate until paid or, if such rate is usurious under the laws of Florida, then at
the highest legal rate permissible thereunder (the "Default Rate").
7. Expenses. All parties liable for the payment of this Note agree
to pay the Lender all costs incurred by it in connection with the collection of
this Note. Such costs include, without limitation, fees for the services of
counsel and legal assistants employed to collect this Note, whether or not suit
be brought, and whether incurred in connection with collection, trial, appeal or
otherwise. All such parties further agree to indemnify and hold the Lender
harmless against liability for the payment of state documentary stamp taxes,
intangible taxes or other taxes (including interest and penalties, if any),
excluding income or service taxes of the Lender, which may be determined to be
payable with respect to this transaction.
8. Miscellaneous. The Borrower shall make all payments hereunder in
lawful money of the United States at the Lender's address set forth herein or at
such other place as the Lender may designate in writing. The remedies of the
27
Lender as provided herein shall be cumulative and concurrent, and may be pursued
singly, successively or together, at the sole discretion of the Lender and may
be exercised as often as occasion therefor shall arise. No act of omission or
commission of the Lender, including specifically any failure to exercise any
right, remedy or recourse, shall be effective, unless set forth in a written
document executed by the Lender, and then only to the extent specifically
recited therein. A waiver or release with reference to one event shall not be
construed as continuing, as a bar to, or as a waiver or release of any
subsequent right, remedy or recourse as to any subsequent event. This Note shall
be construed and enforced in accordance with Florida law and shall be binding
on the successors and assigns of the parties hereto. The term "Lender" as
used herein shall mean any holder of this Note. The Lender may, at its option,
round any or all fractional amounts under Section 3 upwards to the next higher
1/100 of 1%.
The Borrower hereby: (i) waives demand, notice of demand, presentment for
payment, notice of nonpayment or dishonor, protest, notice of protest and all
other notice, filing of suit and diligence in collecting this Note; (ii) agrees
to any substitution, addition or release of any party or person primarily or
secondarily liable hereon; and (iii) agrees that the Lender shall not be
required first to institute any suit, or to exhaust his, their or its remedies
against the Borrower or any other person or party to become liable hereunder, or
against any collateral in order to enforce payment of this Note.
This Note is the Seasonal Note referred to in the Loan Agreement.
XXXXX MART, INC.
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Its Sr. Vice President/Chief Financial Officer
------------------------------------------
(CORPORATE SEAL)
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this 20th day of August, 1997, by Xxxxx X. Xxxxx the Senior Vice
President of Xxxxx Mart, Inc., a Florida corporation, on behalf of the
corporation, in Camden County, Georgia.
V. Xxxxxx Xxxxxxxx
------------------------------
Notary Public, State and County
aforesaid
Print Name: V. Xxxxxx Xxxxxxxx
Notary Public, Camden County, Georgia
My Commission Expires: January 16, 2000
[Notary Seal]
28
SECOND AMENDMENT TO ACCEPTANCE AGREEMENT
THIS AMENDMENT is made as of August 20, 1997, by and between XXXXX MART,
INC. (the "Borrower") and XXXXXXX BANK, N.A. (the "Bank").
Recitals
The Bank and the Borrower are parties to an Acceptance Credit Agreement (as
amended from time to time, the "Acceptance Agreement") dated June 29, 1992. The
parties amended the Acceptance Agreement on June 29, 1993, and the parties wish
to further amend the Acceptance Agreement in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the parties agree
as follows:
1. Section 1 of the Acceptance Agreement is hereby amended so that, from
and after the date hereof, the reference therein to $10,000,000 (as set forth in
the amendment to the Acceptance Agreement dated June 29, 1993) shall mean
$25,000,000.
2. Section 1(c) of the Acceptance Agreement is hereby amended so that, from
and after the date hereof, the Stated Rate shall equal one and one-half percent
(1.5%) per annum below the Prime Rate (as defined in the Note described in the
Loan Agreement) or, if the Default Rate is in effect under the Note, the Default
Rate. The Stated Rate shall be adjusted on each day that the Prime Rate changes.
3. The Acceptance Agreement is hereby amended so that, from and after the
date hereof, all references therein to the Loan Agreement shall mean the Amended
and Restated Loan Agreement dated June 29, 1993, between the Borrower and the
Bank, as the same may be amended or restated from time to time.
4. Except as modified herein, the Acceptance Agreement shall continue in
full force and effect.
DATED as of the day and year first above written.
XXXXX MART, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Its: Sr. Vice President/Chief Financial Officer
-----------------------------------------
29
XXXXXXX BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Its: Vice President
-------------------------------------------
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this 20th day of August, 1997, by Xxxxx X. Xxxxx the Senior Vice
President of Xxxxx Mart, Inc., on behalf of the corporation, in Camden
County, Georgia.
/s/ V. Xxxxxx Xxxxxxxx
-------------------------------------------------
Notary Public, State and County
aforesaid
Print Name: V. Xxxxxx Xxxxxxxx
Notary Public, Camden County, Georgia
My Commission Expires: January 16, 2000
[Notary Seal]
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this 20th day of August, 1997, by Xxxxx Xxxxxxx the Vice President
of Xxxxxxx Bank, N.A., on behalf of the bank, in Camden County, Georgia.
/s/ V. Xxxxxx Xxxxxxxx
-------------------------------------------------
Notary Public, State and County
aforesaid
Print Name: V. Xxxxxx Xxxxxxxx
Notary Public, Camden County, Georgia
My Commission Expires: January 16, 2000
[Notary Seal]
30
