Exhibit 10.3
FORBEARANCE AGREEMENT
This FORBEARANCE AGREEMENT ("Agreement") is made as of the 31st day of
July, 2003 (the "Effective Date"), by and between INTREPID CAPITAL CORPORATION,
a Florida corporation ("Borrower"), and WACHOVIA BANK, NATIONAL ASSOCIATION
("Bank").
RECITALS
A. Borrower is indebted to Bank under the loan (the "Loan")
extended to Borrower pursuant to the Renewal Promissory Note dated March 25,
2003 (the "Note"), by Borrower in favor of Bank, and by each of the other
documents and instruments entered into in connection with the Note, including,
without limitation, the Security Agreement (the "Security Agreement") dated
December 9, 2002, as the same may have been previously renewed, modified and/or
extended (collectively, the "Loan Documents"). Capitalized terms used herein
and not otherwise defined herein shall have the same definitions herein as they
have in the Loan Documents.
B. Borrower is currently in default under the terms of the Loan
Documents as a result of the following: (i) Borrower's failure to make a
principal payment of $100,000 that was due and payable on June 5, 2003, under
the terms of the Note, (ii) Borrower's conversion of collateral pledged
pursuant to the Security Agreement, (iii) Borrower's failure to pay the
accelerated balance due under the Loan Documents by June 20, 2003, pursuant to
Bank's demand letter dated June 11, 2003, and (iv) Borrower's failure to pay
the entire balance due under the Note that was due and payable on July 5, 2003.
C. Bank has incurred certain costs and expenses, including
reasonable attorney's fees, in connection with Borrower's defaults under the
Loan Documents.
D. Borrower has requested and Bank, although under no obligation
to do so, is willing to forbear from exercising its rights and remedies against
Borrower under the Loan Documents for a period of time as specified herein, and
on the terms and conditions set forth herein.
AGREEMENT
For and in consideration of the mutual covenants herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Bank agree as follows:
1. Recitals. The foregoing recitals are confirmed by
the parties as true and correct and are incorporated herein by reference. The
recitals are a substantive, contractual part of this Agreement.
2. No Waiver. The execution, delivery and performance
of this Agreement by Bank and the acceptance by Bank of performance of Borrower
hereunder (a) shall not constitute a waiver or release by Bank of any default
that may now or hereafter exist under the Loan Documents, (b) shall not
constitute a novation of the Loan Documents as it is the intent of the parties
to modify
the Loan Documents as expressly set out herein and (c) except as expressly
provided in this Agreement, shall be without prejudice to, and is not a waiver
or release of, Bank's rights at any time in the future to exercise any and all
rights conferred upon Bank by the Loan Documents or otherwise at law or in
equity, including without limitation the right to institute foreclosure
proceedings against the Collateral and/or institute collection or arbitration
proceedings against Borrower and/or to exercise any right against any other
person or entity not a party to this Agreement.
3. Forbearance. So long as this Agreement is not
terminated earlier as provided herein, Bank agrees not to accelerate the
indebtedness under the Note, foreclose or attempt to foreclose any of
Borrower's Collateral securing the Note, institute suit or arbitration
proceedings for collection of the Note against Borrower, or exercise any other
remedies against Borrower available to it under the Loan Documents or under
applicable law from the Effective Date until November 30, 2003 (the
"Termination Date"). The period of time from the Effective Date through the
Termination Date shall be referred to as the "Forbearance Period." Borrower and
Bank acknowledge and agree that from the Effective Date, Borrower shall pay
interest at the prevailing Prime Rate of interest announced by the Bank from
time to time, plus 4.75%, on the Indebtedness outstanding from time to time. If
all amounts due and owing under the Loan are not paid in full on or before the
Termination Date or the earlier termination of this Agreement, then Bank may
seek to accelerate the indebtedness under the Note, foreclose upon any of
Borrower's Collateral for the Note and to exercise any other remedies to which
Bank may be entitled under the Loan Documents or applicable law to collect
amounts due under the Note or other Loan Documents. Borrower agrees that
Borrower will not, during the Forbearance Period, initiate any action of any
kind against Bank with respect to the Note, exercise any remedy available under
the Loan Documents or otherwise, or make any type of demand upon Bank with
respect to the indebtedness evidenced by the Note. During the Forbearance
Period, there shall occur no new Default or event which, with the passage of
time or the giving of notice or both, would constitute a Default under any one
or more of the Loan Documents or this Agreement. Borrower acknowledges that
Bank's obligations under this Agreement are in the nature of a conditional
forbearance only, and that Bank has made no agreement or commitment to modify
or extend the Loan Documents beyond the Forbearance Period, and upon the
termination of the Forbearance Period or earlier termination of this Agreement,
Bank shall have the immediate and unconditional right to exercise its rights
and remedies under the Loan Documents.
4. Conditions Precedent. Bank's obligation to forbear
under Section 3 hereof is subject to the satisfaction of the following
conditions:
(a) Bank shall have received a $50,000.00
principal payment from Borrower with respect to the Loan; and
(b) Bank shall have received $4,129.16, which
amount represents payment for all accrued and unpaid interest payable under the
Note as of July 31, 2003; and
(c) Borrower shall have executed and delivered
this Forbearance Agreement and such other documents as may be required by Bank,
all in form and substance satisfactory to Bank; and,
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(d) Each of Borrower's representations and
warranties in Section 11 shall be true and correct in all respects as of the
date hereof.
5. Repayment of Loans and Additional Undertakings.
Borrower covenants and agrees as follows:
(a) Borrower shall pay to Bank by 2:00 p.m. on
October 15, 2003, a principal payment of $50,000 with respect to the Loan; and
(b) Borrower shall pay to Bank in immediately
available funds all of Borrower's proceeds arising from the Xxxxx X. Xxxxx &
Co., Plaintiff v. Synovus Financial Corporation, Defendant, Case No.
3:02cv38/LAC, United States District Court, Northern District of Florida,
litigation; and
(c) Borrower shall pay interest to Bank, in
consecutive monthly payments commencing on August 15, 2003, and continuing on
the same day of each month thereafter until the Loan is fully paid on the
unpaid principal balance of the Note; and
(d) On November 15, 2003, so long as Borrower
has complied with the terms and conditions of this Agreement and the Loan
Documents and no termination event (as described in Section 13 of this
Agreement) has occurred or is occurring, Bank may, at its sole option,
restructure the payment of the loan in the following manner: Borrower shall pay
Bank consecutive quarterly principal payments of $60,000 each commencing
January 15, 2004, and continuing on the same day of each quarter thereafter
until the Loan is fully paid. All principal and interest shall be due and
payable on October 15, 2004.
6. Forbearance Fees and Expenses. Borrower shall pay to
Bank, in consideration of Bank's forbearance, a fee (the "Forbearance Fee") in
the amount of Five Thousand Dollars ($5,000.00). The fee shall be paid not
later than November 15, 2003. Borrower agrees to reimburse Bank for all of
Bank's out-of-pocket costs and expenses in connection with the preparation of
this Forbearance Agreement and the consummation of the transactions
contemplated herein.
7. Acknowledgment of Default and Amounts Due. Borrower
acknowledges and agrees that it is in default under the terms and conditions of
the Loan Documents, that Bank has notified Borrower of such default, and that
the aggregate outstanding unpaid principal balance of the Note on July 31, 2003
is $300,000.00. Borrower waives any and all rights to notice of any other
default, protest and notice of protest, dishonor, diligence in collecting and
the bringing of suit or arbitration proceedings against any party, notice of
intention to accelerate, notice of acceleration, demand for payment and any
other notices whatsoever regarding the Note or the other Loan Documents, and
further waives any claims that any notices previously given are insufficient
for any reason.
8. Partial Payments. If Borrower makes future partial
payments on the Loan, such payments will be applied in such order of
application as Bank deems appropriate to reduce the amounts outstanding under
the Loan, but Bank's acceptance of such payments and their application shall
not cure the defaults under the Loan, shall not affect Bank's exercise of its
remedies, shall not
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in any way constitute an agreement or commitment to modify, renew or extend the
Loan, and shall not constitute a waiver of any kind by Bank.
9. Tax Indemnity. Borrower assumes full liability for
payment of all taxes, assessments, charges and fees of any kind whatsoever,
including interest and penalties, if any (collectively, "Taxes"), now or
hereafter due with respect to or in connection with this Agreement. Borrower
agrees to indemnify Bank, its directors, officers, agents and employees from
and against any and all liability and costs (including, without limitation,
reasonable attorneys' fees) that may accrue to or be sustained by Bank, its
directors, officers, agents or employees in connection with or as a result of:
(a) the failure to pay any Taxes on or in connection with this Agreement when
due; and (b) any claim or action filed or brought by or in the name of the
State of Florida or any department or agency thereof (including, without
limitation, the Florida Department of Revenue) with respect to any non-payment
of Taxes on or in connection with this Agreement when due.
10. Limitation on Interest. No provision of this
Agreement, the Note, any of the other Loan Documents, or any instrument
evidencing or securing the Note, or otherwise relating to the indebtedness
evidenced by the Note, shall require the payment or permit the collection,
application or receipt of interest in excess of the maximum rate permitted by
applicable state or federal law. If any excess of interest in such respect is
herein or in any such other instrument provided for, or shall be adjudicated to
be so provided for herein or in any such instrument, the provisions of this
paragraph shall govern, and neither Borrower nor any endorsers of the Note nor
their respective heirs, personal representatives, successors or assigns shall
be obligated to pay the amount of such interest to the extent it is in excess
of the amount permitted by applicable law. It is expressly stipulated and
agreed to be the intent of Borrower and Bank at all times to comply with the
usury and other laws relating to the Note and the other Loan Documents and any
subsequent revisions, repeals or judicial interpretations thereof, to the
extent applicable to the Note or the other Loan Documents. In the event Bank
ever receives, collects or applies as interest any such excess, such amount
that would be excessive interest shall be applied to the reduction of the
unpaid principal balance of the Note, and, if upon such application the
principal balance of the Note is paid in full, any remaining excess shall be
paid forthwith to Borrower and the provisions of the Note, the other Loan
Documents and any demand or other charging document shall immediately be deemed
reformed and the amounts thereafter collectible thereunder reduced, without the
necessity of execution of any new document, so as to comply with the then
applicable law, but so as otherwise to permit the recovery of the fullest
amount called for thereunder. In determining whether or not the interest paid
or payable under any specific contingency exceeds the maximum rate of interest
allowed to be charged by applicable law, Borrower and Bank shall, to the
maximum extent permitted under applicable law, amortize, prorate, allocate and
spread the total amount of interest throughout the entire term of the
respective Note so that the amount or rate of interest charged for any and all
periods of time during the term of the Note is to the greatest extent possible
less than the maximum amount or rate of interest allowed to be charged by law
during the relevant period of time. Notwithstanding any of the foregoing, if at
any time applicable laws shall be changed so as to permit a higher rate or
amount of interest to be charged than that permitted prior to such change, then
unless prohibited by law, references in the Note to "applicable law" for
purposes of determining the maximum interest or rate of interest that can be
charged shall be deemed to refer to such applicable law as so amended to allow
the greater amount or rate of interest.
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11. Representations and Warranties and Covenants. In
order to induce Bank to execute, deliver and perform this Agreement, Borrower
represents and warrants and covenants to Bank as follows:
(a) There are no defaults other than the
Existing Defaults (as defined below) and all representations and warranties
made in the Loan Documents are true and correct as of the Effective Date;
(b) This Agreement is not being made or entered
into with the actual intent to hinder, delay, or defraud any entity or person,
and Borrower is solvent and not bankrupt. Except as specifically provided in
this Agreement, no express or implied consent to any further forbearance or
modifications involving any of the matters set forth in this Agreement or
otherwise shall be inferred or implied by Bank's execution of this Agreement or
any other action of Bank;
(c) Borrower is presently in default under the
Loan Documents as follows (collectively, the "Existing Defaults"):
(i) Borrower's failure to make a
principal payment of $100,000 that was due and payable on June 5, 2003, under
the terms of the Note;
(ii) Borrower's conversion of
collateral pledged pursuant to the Security Agreement;
(iii) Borrower's failure to pay the
accelerated balance due under the Loan Documents by June 20, 2003, pursuant to
Bank's demand letter dated June 11, 2003; and
(iv) Borrower's failure to pay the
entire balance due under the Note that was due and payable on July 5, 2003.
(d) This Agreement is not intended by the
parties to be a novation of the Loan Documents and, except as expressly
modified herein, all terms, conditions, rights and obligations as set out in
the Loan Documents are hereby reaffirmed and shall otherwise remain in full
force and effect as originally written and agreed;
(e) No action or proceeding, including, without
limitation, a voluntary or involuntary petition for bankruptcy under any
chapter of the Federal Bankruptcy Code, has been instituted or threatened by or
against Borrower and Borrower does not intend (i) to file any petition under
any chapter of the Federal Bankruptcy Code, or in any manner to seek relief,
protection, reorganization, liquidation, dissolution or similar relief for
debtors under any other local, state, federal or other insolvency law or laws
providing for relief of debtors or in equity, or (ii) directly or indirectly to
cause any involuntary petition under any chapter of the Federal Bankruptcy Code
to be filed against Borrower, or directly or indirectly to cause Borrower to
become the subject of any proceedings pursuant to any other state, federal or
other insolvency laws or laws providing for the relief of debtors, either at
the present time, or any time hereafter;
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(f) The execution of this Agreement by Borrower
and the performance by Borrower of its obligations hereunder will not violate
or result in a breach or constitute a default under any agreements to which it
is a party;
(g) All information provided by Borrower to
Bank prior to the date hereof, including, without limitation, all financial
statements, balance sheets, and cash flow statements, was, at the date of
delivery, and is, as of the date hereof, true and correct in all respects.
Borrower recognizes and acknowledges that Bank is entering into this Agreement
based in part on the financial information provided to Bank by Borrower and
that the truth and correctness of that financial information is a material
inducement to Bank in entering into this Agreement. During the term of this
Agreement, Borrower agrees to advise Bank promptly in writing of any and all
new information, facts, or occurrences that would in any way materially
supplement, contradict, or affect any financial statements, balance sheets,
cash flow statements, or similar items furnished to Bank;
(h) This Agreement and the Loan Documents
constitute the entire agreement among Bank and Borrower with respect to this
matter;
(i) Borrower has no defenses, affirmative
defenses, set-offs, claims, counterclaims or causes of action of any kind or
nature whatsoever with respect to (i) the Loan Documents or the indebtedness
evidenced or secured thereby, (ii) any other documents or instruments
evidencing, securing or in any way relating to the Loan Documents or (iii) the
administration or funding by the Bank of the Loan Documents and the Loan
evidenced thereby;
(j) Borrower shall reimburse Bank for all fees
and expenses incurred by Bank, including reasonable attorney's fees incurred by
Bank, with respect to the Loan Documents, this Forbearance Agreement and any
documents related thereto; and
(k) Borrower shall be allowed to make interest
payments to The Jacksonville Bank and payments to Xxxxxx X. Xxxxxx, in
accordance with the terms and conditions of the Forbearance and Modification
Agreement between Intrepid Capital Corporation and Xxxxxx X. Xxxxxx, dated June
6, 2003, providing that there are no defaults under this Agreement.
12. Reaffirmation of Security Interest. Borrower hereby
reaffirms its grant of a security interest to Bank in certain property of
Borrower previously granted to Bank under the Loan Documents.
13. Termination of this Agreement. This Agreement will
terminate upon the expiration of the Forbearance Period unless terminated
earlier by Bank, at Bank's sole option, upon written notice to Borrower of the
occurrence of any of the following:
(a) Borrower files a petition for bankruptcy
under any chapter of the Federal Bankruptcy Code or takes advantage of any
other debtor relief law, or an involuntary petition for bankruptcy under any
chapter of the Federal Bankruptcy Code is filed against Borrower or any other
judicial action is taken with respect to Borrower by any creditor;
(b) Bank discovers that any representation or
warranty made herein by Borrower was or is untrue, incorrect or misleading in
any respect;
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(c) An event of default occurs under the Loan
Documents, other than the Existing Defaults;
(d) Borrower breaches or defaults in
performance of any covenant or agreement contained in this Agreement;
(e) Borrower initiates any judicial,
administrative or arbitration proceeding against Bank or makes any assignment
for the benefit of creditors;
(f) Borrower is in default of any obligation
owed to any other creditor; or
(g) Bank, in its sole discretion, deems itself
insecure for any reason.
14. Release of Bank. In consideration of the agreements
of Bank set forth in this Agreement, Borrower and all of Borrower's respective
predecessors, successors and assigns (individually and collectively, the
"Releasors"), hereby fully release, remise, and forever discharge Bank, and all
other affiliates and predecessors of Bank, and all past and present officers,
directors, agents, employees, servants, partners, shareholders, attorneys and
managers of Bank, and such other affiliates and predecessors of Bank, and all
of their respective heirs, personal representatives, predecessors, successors
and assigns ("Bank-Related Parties") for, from, and against any and all claims,
liens, demands, causes of action, controversies, offsets, obligations, losses,
damages and liabilities of every kind and character whatsoever, including,
without limitation, any usury claims or any action, omission, misrepresentation
or other basis of liability founded either in tort, contract or equity and the
duties arising thereunder (collectively "Claims"), that the Releasors, or any
of them has had in the past, or now has, whether known or unknown, whether
asserted or unasserted, by reason of any matter, cause or thing set forth in,
relating to or arising out of, or in any way connected with or resulting from,
the Loan, the Loan Documents or any real or personal property now or at any
time securing the Loan. It is the express intent of the Bank and Releasors that
the release and discharge set forth in this paragraph be construed as broadly
as possible in favor of Bank-Related Parties so as to foreclose forever the
assertion by any of Releasors of any Claim, as defined above, against
Bank-Related Parties or any of them.
15. Bankruptcy.
(a) In entering into this Agreement, Borrower
and Bank hereby stipulate, acknowledge and agree that Bank gave up valuable
rights and agreed to forbear from exercising legal remedies available to it in
exchange for the promises, representations, acknowledgments and warranties of
Borrower as contained herein and that Bank would not have entered into this
Agreement but for such promises, representations, acknowledgments, agreements,
and warranties, all of which have been accepted by Bank in good faith, the
breach of which by Borrower in any way, at any time, now or in the future,
would admittedly and confessedly constitute cause for dismissal pursuant to 11
U.S.C. ss. 1112(b) of any bankruptcy petition filed by or against Borrower.
(b) As additional consideration for Bank
agreeing to forbear from immediately enforcing its rights and remedies under
this Agreement, the Note and the Loan Documents, including, without limitation,
the institution of foreclosure proceedings, Borrower agrees that in the event a
bankruptcy petition under any Chapter of the Bankruptcy Code (11 U.S.C.
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ss.101, et seq.) is filed by or against Borrower at any time after the
execution of this Agreement, Bank shall be entitled to the immediate entry of
an order from the appropriate bankruptcy court granting Bank complete relief
from the automatic stay imposed by ss.362 of the Bankruptcy Code (11 U.S.C.
ss.362) to exercise its foreclosure and other rights, including, without
limitation, obtaining a foreclosure judgment and foreclosure sale, upon the
filing with the appropriate court of a motion for relief from the automatic
stay with a copy of this Agreement attached thereto. Borrower specifically
agrees (i) that upon filing a motion for relief from the automatic stay, Bank
shall be entitled to relief from the stay without the necessity of an
evidentiary hearing and without the necessity or requirement of the Bank to
establish or prove the value of the Collateral, the lack of adequate protection
of its interest in the Collateral, or the lack of equity in the Collateral;
(ii) that the lifting of the automatic stay hereunder by the appropriate
bankruptcy court shall be deemed to be "for cause" pursuant to ss.362(d)(1) of
the Bankruptcy Code (11 U.S.C. ss.362(d)(1)); and (iii) that Borrower will not
directly or indirectly oppose or otherwise defend against Bank's efforts to
gain relief from the automatic stay. This provision is not intended to preclude
Borrower from filing for protection under any Chapter of the Bankruptcy Code.
The remedies prescribed in this paragraph are not exclusive and shall not limit
Bank's rights under the Loan Documents, this Agreement or under any law or
equitable principle.
(c) All of the above terms and conditions have
been freely bargained for and are all supported by reasonable and adequate
consideration and the provisions herein are material inducements for Bank
entering into this Agreement.
16. WAIVER OF JURY TRIAL. EACH PARTY HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT ANY SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS FORBEARANCE AGREEMENT, THE LOAN DOCUMENTS, ANY
OTHER AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY SUCH PARTY.
17. Miscellaneous.
(a) This Agreement may be executed in a number
of identical counterparts which, taken together, shall constitute collectively
one (1) agreement; but in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart executed by
the party to be charged.
(b) Any future waiver, alteration, amendment or
modification of any of the provisions of the Loan Documents or this Agreement
shall not be valid or enforceable unless in writing and signed by all parties,
it being expressly agreed that neither the Loan Documents, nor this Agreement
can be modified orally, by course of dealing or by implied agreement. Any delay
by Bank in enforcing its rights after an event of default shall not be a
release or waiver of the event of default and shall not be relied upon by the
Borrower as a release or waiver of the default.
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(c) This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns.
(d) The headings of paragraphs in this
Agreement are for convenience of reference only and shall not in any way affect
the interpretation or construction of this Agreement.
(e) This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without regard to
conflict of law principles to the extent they would apply the law of another
state or jurisdiction.
(f) The warranties and representations of the
parties in this Agreement shall survive the termination of this Agreement.
(g) The terms and conditions set forth in this
Agreement are the product of joint draftsmanship by all parties, each being
represented by counsel, and any ambiguities in this Agreement or any
documentation prepared pursuant to or in connection with this Agreement shall
not be construed against any of the parties because of draftsmanship.
(h) For purposes of this Agreement and the Loan
Documents, the addresses for notice to Borrower and Bank are as follows:
BORROWER:
INTREPID CAPITAL CORPORATION
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, President
And Chief Executive Officer
BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION
FL0009
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Senior Vice President
Notice shall be in writing, and shall be deemed to have been given (i) 72 hours
after being sent by certified or registered mail, return receipt requested,
postage prepaid and addressed as set forth above; or (ii) if by personal
delivery (a) to Borrower, when personally delivered to Borrower or any officer,
partner, agent or employee of Borrower at its respective address set forth
above, or (b) if to Bank, when personally delivered to an officer of the
Special Assets Department of Bank at the address set forth above. Rejection or
other refusal to accept or inability to deliver because of a changed address of
which no notice has been received shall also constitute service of notice.
Borrower and Bank may change such address by sending written notice to the
other in accordance
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with the foregoing; however, no written notice of change of address shall be
effective until the date of receipt thereof.
18. FINAL AGREEMENT. THIS AGREEMENT AND THE LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR ORAL OR
WRITTEN, OR CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
EXECUTED as of the Effective Date.
BORROWER:
INTREPID CAPITAL CORPORATION, a
Florida corporation
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Print Name: Xxxx X. Xxxxxx
---------------------------------
Title: President and Chief Executive Officer
--------------------------------------
Date: August 1, 2003
---------------------------------------
BANK:
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Print Name: Xxxxxxxxx X. Xxxxxxx, Xx.
---------------------------------
Title: Senior Vice President
--------------------------------------
Date: August 1, 2003
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