CREDIT AGREEMENT
BY AND BETWEEN
NATIONSBANK, N.A.,
a national banking association
(the "Bank")
AND
THE XXXXXXX CO.,
a Florida corporation
(the "Borrower")
Dated March 17, 1998
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, made this 17th day of March, 1998 between THE
XXXXXXX CO., a Florida corporation (the "Borrower") and NATIONSBANK, N.A.,
a national banking association (the "Bank").
WITNESSETH:
WHEREAS, Bank has agreed to extend a Term Loan in the amount of THREE
MILLION DOLLARS ($3,000,000.00) (the "Term Loan") to Borrower as evidenced
by a Promissory Note dated March 17, 1998 (the "Note") which shall be used
by Borrower for acquisitions; and
WHEREAS, Bank has agreed to provide such financing conditioned upon
the Borrower agreeing to the terms and conditions set forth in this Credit
Agreement and to the execution of certain other documents in connection
therewith.
NOW, THEREFORE, in consideration of the Sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. The following definitions will apply to this Credit
Agreement as well as all other documentation involved in this loan
transaction:
A. "Bank" - NATIONSBANK, N.A., a national banking association.
B. "Borrower" - THE XXXXXXX CO., a Florida corporation.
C. "Commitment Fee" - A fee of in the amount of Seven Thousand and
No/100 Dollars ($7,000.00), shall be due at closing.
D. "Promissory Note" or "Note" - is the Promissory Note in the original
principal amount of Three Million and No/100 Dollars ($3,000,000.00) from
Borrower in favor of Bank.
E. "Current Maturity Coverage" - is defined as the sum of Net Income,
non cash charges less dividends divided by the sum of current maturities of
long term debt. Borrower shall maintain a Current Maturity Coverage of
not less than 1.75:1.00.
F. "Current Minimum Ratio" - Borrower shall maintain at all times a
ratio of current assets to current liabilities of not less than 2.0:1.0,
tested quarterly.
G. "Funded Debt/EBITDA" - is 2.50:1.00 to be tested quarterly on a
trailing monthly basis.
H. "Interest Rate" - Fixed rate of 6.92% per annum.
I. "Loan Documents" - This term includes all documents which comprise
the loan documentation including, but not limited to the Promissory
Note, Credit Agreement, Pledge Agreement, Stock Powers, and any and
all supplemental related Loan Documents between Bank and Borrower.
J. "Maturity Date" - March 17, 2005.
2. INTEREST RATE. Fixed rate of 6.92% per annum.
3. DEFAULT RATE OF INTEREST. After maturity, whether by acceleration
or otherwise, or after the entry of judgment, at Holder's option, the
entire unpaid principal balance of the Line of Credit shall bear interest
until paid at an augmented annual rate (the "Default Rate") from and after
the stated or accelerated maturity of the Note, or from and after failure
to pay on the due date any sum payable under the Note or under any other
Loan Document (and the expiration of any applicable grace period provided
in the Note or any such other Loan Document for that payment), or from and
after the occurrence of any other default (whether concerned with the
payment of money or otherwise) under any Loan Document (and the expiration
of any applicable grace period provided in such Loan Document for the cure
of that default); provided, however that after judgment all such sums shall
bear interest at the greater of the Default Rate or the rate prescribed by
applicable law for judgments. The Default Rate shall be eighteen percent
(18%) per annum.
4. PRINCIPAL PAYMENTS. Borrower shall make monthly payments of
principal in the amount of Thirty-Five Thousand Seven Hundred Fourteen and
29/lOO Dollars $35,714.29), plus interest for seven (7) years, at which
time the entire outstanding principal balance unpaid, plus all accrued
interest shall be due and payable.
5. MATURITY DATE. Provided there is no event of a monetary or non-
monetary default under the Note or Loan Documents, the entire principal
balance and any unpaid charges, together with any accrued, but unpaid,
interest thereon shall be due and payable in ful1 on March 17, 2005.
6. COMMITMENT FEE. At the closing of this transaction, Bank shall be
entitled to a Commitment Fee in the amount of Seven Thousand and No/100
Dollars ($7,000.00).
7. USE OF PROCEEDS. The proceeds shall be used by Borrower for
acquisitions.
8. COLLATERAL. Borrower agrees to pledge the stock of Xxxxxx Flamingo
- Xxxxxxx, Inc., a Florida corporation.
9. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Bank as follows:
A. Good Standing. Borrower is a corporation, duly organized,
validly existing and in good standing under the laws of Florida and has the
power and authority to own its property and to carry on its business in
each jurisdiction in which Borrower does business.
B. Authority and Compliance. Borrower has full power and
authority to execute and deliver the Loan Documents and to incur and
perform the obligations provided for therein, all of which have been duly
authorized by all proper and necessary action of the appropriate governing
body of Borrower. No consent or approval of any public authority or other
third party is required as a condition of the validity of any Loan
Document, and Borrower is in compliance with all laws and regulatory
requirements to which it is subject.
C. Binding Agreement. This Agreement and the other Loan
Documents executed by Borrower constitute valid and legally binding
obligations of Borrower, enforceable in accordance with their terms.
D. Litigation. There is no actions suits, or proceedings
involving Borrower pending or, to the knowledge of Borrower, threatened
before any court or governmental authority, agency or arbitration
authority, except as disclosed to Bank in writing and acknowledged by Bank
prior to the date of this Agreement, which involve or would adversely
affect the transactions contemplated herein or which could have an adverse
affect on the Borrower's business or financial condition.
E. No Conflicting Agreements. There is no charter, bylaw, stock
provision, partnership agreement or other document pertaining to the
organization, power or authority of Borrower and no provision of any
existing agreement, mortgage, indenture or contract binding on Borrower or
affecting its property, which would conflict with or in any way prevent the
execution, delivery or carrying out of the terms of this Agreement and the
other Loan Documents.
F. Taxes. All taxes and assessments due and payable by Borrower
have been paid or are being contested in good faith by appropriate
proceedings and the Borrower has filed all tax returns which it is required
to file.
G. Financial Statements. The financial statements of Borrower
heretofore delivered to Bank have been prepared in accordance with GAAP
applied on a consistent basis throughout the period involved and fairly
present Borrower's financial condition as of the date or dates thereof, and
there has been no material adverse change in Borrower's financial condition
or operations since September 30, 1997. All factual information furnished
by Borrower to Bank in connection with this Agreement and the other Loan
Documents is and will be accurate and complete on the date as of which such
information is delivered to Bank and is not and will not be incomplete by
the omission of any material feet necessary to make such information not
misleading.
H. Place of Business. Borrower's chief executive office is
located at 0000 Xxxx XxXxx Xxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000.
I. Environmental. The conduct of Borrower's business operations
and the condition of Borrower's property does not and will not violate any
federal laws, rules or ordinances for environmental protection, regulations
of the Environmental Protection Agency, any applicable local or state law,
rule, regulation or rule of common law or any judicial interpretation
thereof relating primarily to the environment or Hazardous Materials.
J. Continuation of Representations and Warranties. All
representations and warranties made under this Agreement shall be deemed to
be made at least as of the date hereof and at the time of any future
advance, if any, hereunder.
10. CONDITIONS PRECEDENT TO FUNDING. The following are conditions
precedent to Bank's obligation to close and fund the Note and the Borrower
agrees to furnish the following to the Bank, as a condition precedent to
closing:
A. Opinion Letter - Written opinion letter addressed to Bank and
Borrower's counsel, from Borrower's attorney, in a form and substance
satisfactory to Bank and its counsel.
B. Corporate Documents - Certified copies of the Articles of
Incorporation and Bylaws of Borrower, and all amendments thereto, together
with a Certificate of Good Standing of Borrower and proof of qualification
to do business in each jurisdiction business is conducted.
C. Corporate Resolutions - Resolution of Borrower authorizing
the 1997 Loan and Line of Credit and the execution of all documents
required in connection with the l997 Loan and Line of Credit.
D. An executed Note, Loan Documents and other documents and
instruments necessary or advisable in connection with this Loan.
E. Certification that there exists no pending or threatened
litigation, the result of which could have an adverse effect on the
business or financial condition of the Borrower.
FINANCIAL COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will, unless
Bank consents otherwise in writing (and without limiting any requirement of
any other Loan Document):
A. Financial Condition. Maintain Borrower's financial condition
as follows, determined in accordance with GAAP applied on a consistent
basis throughout the period involved except to the extent modified by the
following definitions:
i. Funded Debt/EBITDA Coverage Ratio. Borrower will
maintain a minimum Funded Debt/EBlTDA Coverage Ratio of not more than
2.50:1.00 throughout the Note term. The Funded Debt/EBITDA Coverage Ratio
shall be tested quarterly beginning with the June 30, 1997 quarterly
financial statements on a trailing twelve month basis.
ii. Current Maturity Coverage Ratio. Borrower will maintain
a minimum Current Maturity Coverage Ratio of not less than 1.75:1.00
throughout the Note term.
iii. Current Minimum Ratio. Borrower will maintain at all
times a ratio of current assets to current liabilities of not less than
2.0:1.0 tested quarterly.
B. Financial Statements and Other Information. Maintain a system
of in accordance with GAAP applied on a consistent basis throughout the
period involved, and in the event of default, permit Bank's officers or
authorized representatives to visit and inspect Borrower's books of account
and other records at such reasonable times and as often as Bank may desire,
and further pay the reasonable fees and disbursements of any accountants or
other agents of Bank selected by Bank for the foregoing purposes. Unless
written notice of another location is given to Bank, Borrower's books and
records will be located at Borrower's chief executive office set forth
above. All financial statements called for below shall be prepared in form
and content acceptable to Bank and by independent certified public
accountants acceptable to Bank, the same acceptance not to be unreasonably
withheld by Bank.
In addition, Borrower will:
i. Furnish to Bank annual audited unqualified consolidated
financial statements of Borrower for each fiscal year of Borrower, within
one hundred twenty ( 120) days after the close of each such fiscal year.
ii. Furnish to Bank company prepared consolidated financial
statements of Borrower for each fiscal quarter of Borrower, within fifty
(50) days after the close of each such period, together with quarterly
compliance certificates.
iii. Furnish to Bank a compliance certificate for (and
executed by an authorized representative of) Borrower concurrently with and
dated as of the date of delivery of each of the financial statements as
required in paragraphs i and ii above, containing (a) a certification that
the financial statements of even date are true and correct and that the
Borrower; is not in default under the terms of this Agreement, and
(b)computations and conclusions, in such detail as Bank may request, with
respect to compliance with this Agreement, and the other Loan Documents,
including computations of all quantitative covenants.
12. AFFIRMATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Note Documents, borrower will, unless
Bank consults otherwise in writing (and without limiting any requirement of
any other Loan Document):
A. Insurance. Maintain insurance with responsible insurance
companies on such of its properties in such amounts and against such risks
as is customarily maintained by similar businesses operating in the same
vicinity, specifically to include fire and extended coverage insurance
covering all assets, business liability insurance, all to be with such
companies and in such amounts a are satisfactory to Bank and providing for
at least 30 days prior notice to Bank of any cancellation thereof.
Satisfactory evidence of such insurance will be supplied to Bank prior to
funding under the Note and 30 days prior to each policy renewal.
B. Existence and Compliance. Maintain its existence, good
standing and qualification to do business, where required and comply with
all laws, regulations and governmental requirements including, without
limitation, environmental laws applicable to it or to any of its
properties, business operations and transactions and comply with OHSA, EPA,
Pension Guaranty Board and ERISA.
C. Adverse Conditions or Events. Promptly advise Bank in writing
of (i) any act, omission or undertaking which would singly or in the
aggregate have a materially adverse effect upon the business, assets,
liabilities, financial condition, results of operations or business
prospects of the Borrower, any of its subsidiaries, or upon the ability of
the Borrower to perform any material obligations arising under the Loan
Documents, (ii) any actual or potential contingent liabilities in excess of
Five Hundred Thousand and No/100 Dollars ($500,000.00), (iii) any
litigation against Borrower claiming damages in excess of Two Hundred Fifty
Thousand Dollars ($250,000.00) (iv) any event that has occurred that would
constitute all event of default under any Loan Documents and (v) any
uninsured or partially uninsured loss through fire, theft, liability or
property damage in excess of an aggregate of $250,000.00.
D. Taxes and Other Obligations. Pay all of its taxes,
assessments and other obligations, including, but not limited to taxes,
cost or other expenses arising out of this transaction, as the same become
due and payable, except to the extent that same are being contested in good
faith by appropriate proceedings in a diligent manner.
E. Maintenance. Maintain and preserve all license, trademarks,
privileges, permits, franchises, certificates and the like necessary for
the operation of its business.
F. Payment and Performance. Borrower shall promptly pay and
punctually perform, or shall cause to be promptly paid and punctually
performed, all of the obligations as and when due and payable and after
expiration of any grace period and upon xxxx notice.
G. Inspection. In the event of default, Borrower shall permit
Bank and its agents to inspect its records; assets and properties at any
time during normal business hours and at all other reasonable times.
H. Expenses. Borrower shall pay all costs and expenses in
connection with the Note and the preparation, execution, and delivery of
the Loan Documents including, but not limited to, reasonable fees and
disbursements of counsel appointed by Bank, and all expenses, documentary
stamp tax and intangible tax, and other taxes, appraisals, insurance and
all other fees, costs and expenses, if any, set forth in the Loan
Documents, or otherwise connected xxxxx this transaction.
I. Preservation of Agreements Borrower shall preserve and keep
in full force and effect all agreements, approvals, permits and licenses
necessary for the development, use and operation of the its assets for
their intended purpose or purposes.
J. Books and Records. Borrower shall keep and maintain, at all
times, full, true and accurate books of accounts and records, adequate to
correctly reflect the results of the development, use and operation of its
assets and properties. The Bank shall have the right to examine such books
and records and to make such copies or extracts therefrom as the Bank shall
require.
K. Indemnification. Notwithstanding anything to the contrary
contained in Section 8(I), Borrower shall indemnify, defend and hold Bank
and its successors and assigns harmless from and against any and all
claims, demands, suits, losses, damages, assessments, fines, penalties,
costs or other expenses (including reasonable attorneys' fees and court
costs) arising from or in any way related to any of the transactions
contemplated hereby. The Borrower's obligations under this paragraph shall
survive the repayment of the Note.
L. Comply with GAAP. Borrower shall comply with generally
accepted accounting principals which are to be applied consistently
throughout the term of the Note.
M. Performance of Loan Documents. Borrower shall duly and
punctually perform all covenants, terms and agreements expressed as binding
upon it under Note and all of the Loan Documents.
13. NEGATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Note and/or Loan Documents, Borrower will
not, without the prior written consent of Bank, which consent shall not be
unreasonably withheld (and without limiting any requirement of any other
Loan Documents):
A. Transfer of Assets or Control. Sell, lease, assign or
otherwise dispose of or transfer any existing assets, except in the normal
course of its business, or enter into any merger or consolidation, or
transfer control or ownership of the Borrower or form or acquire any
subsidiary that would result in the Borrower not being the surviving
entity.
B. Management Change. Change or remove Xxxxx X. Xxxxxx from his
current management positions as President and Chief Executive Officer of
Borrower.
C. Advances to Third Parties. No advances in aggregate of more
than One Million Dollars ($1,000,000.00) at any one time during the life of
the Note except for acquisitions.
D. Other Liens. Create or permit to be created or to remain, any
mortgage, pledge, construction lien or other lien, conditional sale or
other title retention agreement, encumbrance, claim, or charge on the
assets or income therefrom. Any transaction prohibited under this paragraph
shall be null and void.
E. Character of Business. Change the general character of
business as conducted at the date hereof, or engage in any type of business
not reasonably related to its business as presently conducted without prior
consent of Bank. Bank shall not unreasonably withhold its consent.
F. Borrower's Certificate of Incorporation. Materially amend or
modify its articles or certificate of incorporation or bylaws.
14. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to Bank
immediately upon demand the full amount of all costs and expenses,
including reasonable attorneys' fees (to include outside counsel fees and
all allocated fees of Bank's in-house counsel if permitted by applicable
law), incurred by Bank in connection with (a) negotiation and preparation
of this Agreement and each of the Loan Documents, and (b) all other costs
and attorneys' fees incurred by Bank for which Borrower is obligated to
reimburse Bank in accordance with the terms of the Loan Documents.
Additionally, Borrower shall pay any documentary stamps, intangible taxes
and filing, search and recording fees and the costs of any appraisal and
environmental report required by Bank. Borrower shall also be responsible
for liable for, and shall hold Bank harmless for, all expenses and costs in
connection with the administration and enforcement of any of Borrower's
obligations to Bank. If at any time the State of Florida shall determine
that the Documentary Stamps affixed thereto, if any, are insufficient, and
that additional Documentary Stamps should be affixed, then Borrower shall
pay for the same, together with any interest or penalties imposed in
connection with such determination, and Borrower hereby agrees to indemnify
and hold Bank harmless therefrom. If any such sums shall be advanced by
Bank, they shall bear interest, shall be paid and shall be secured as
provided in the Loan Documents.
15. DEFAULTS AND REMEDIES. If any one or more of the following events
of default (an "Event of Default") shall occur for any reason whatsoever
(and whether such occurrences shall be voluntary or involuntary, or come
about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court, or any order, rule or
regulation of any administrative or governmental body), that is to say:
(a) any representation or warranty made herein or in any report,
certificate, financial statement or other instrument furnished in
connection with this Credit Agreement or the borrowings hereunder, shall
prove to be false or misleading in any respect;
(b) default shall occur in the payment of principal or interest
on any indebtedness created hereunder, when and as the same shall become
due and payable, whether at the due date or by acceleration or otherwise,
which remains after the due date of such payment; or failure of the
borrower to make payment of principal or interest on any other indebtedness
beyond any period or grace provided with respect thereto, or in the
performance of any other agreement, term or condition contained in any
agreement under which such obligation is created;
(c) any default or violation shall occur on the part of the
Borrower in the due observance or performance of any covenant, agreement or
other provision of this Credit Agreement, or any other agreement,
instrument or contract with Bank, other than for the payment of money,
which shall remain uncured past any cure period provided for herein or
therein, and if no such cure period is specified, if such default shall
remain uncured for ninety (90) days after notice of such default or
violation has been given by Bank to Borrower, or after borrower has
knowledge of such default or violation, whichever is earlier.
(d) Borrower shall (i) apply for or consent to the appointment
of a receiver, trustee in bankruptcy for benefit of creditor's, or
liquidator of Borrower or any of Borrower's assets and/or properties; (ii)
admit in writing Borrower's inability to pay its debts as they mature or
generally fail to pay its debts as they mature; (iii) make a general
assignment for the benefit of credit; (iv) be adjudicated as bankrupt or
insolvent; (v) file a voluntary petition in bankruptcy, or a petition or an
answer seeking reorganization or an arrangement with creditors, or seeking
to take advantage of any bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution of liquidation law or statute of an
answer admitting an act of bankruptcy alleged in a petition filed against
it in any proceeding under any such law;' or (vi) take any action for the
purpose of affecting any of the foregoing;
(e) an order, judgment or decree shall be entered against the
Borrower without its application, approval or consent, or by any court of
competent jurisdiction, approving a petition seeking its reorganization or
appointing a receiver, trustee or liquidator of the Borrower or of all or a
substantial part of any of its assets, and such order, judgment or decree
shall continue unstayed and in effect for a period of thirty (30) days from
the date of entry thereof;
(f) final judgments for the payment of money in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00), shall be rendered against the
Borrower and the same shall remain undischarged for a period of thirty (30)
consecutive days during which execution shall not be effectively stayed;
(g) any monies, deposits or other property of the Borrower now
or hereafter on deposit with, or in the possession or under control of the
Bank, shall be attached or become Borrower; subject to distraint
proceedings or any order or process of court, provided Borrower has not
obtained a court order staying such proceeding;
(h) any material adverse change in the financial or business
condition of
(i) Borrower's corporate existence is changed;
(j) Borrower fails to indemnify and pay Bank, upon demand, for
additional Documentary Stamps imposed by any governmental entity within
fifteen (15) days of such demand by Bank, including the payment of any
penalties, interest, and other charges;
(k) Borrower defaults on any other obligation to Bank;
THEN, and in every such Event of Default, the Bank may, at its
option, upon written notice of not less than ten (l0) days by certified
mail to Borrower, (i) declare all indebtedness of principal and interest
hereunder forthwith to be due and payable, whereupon the Note shall become
due and payable, both as to principal and interest, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly
waived, anything contained herein or in such Note to the contrary
notwithstanding, and (ii) exercise all legal rights and remedies against
Borrower or any assets for the indebtedness of Borrower to Bank. Bank shall
also have the following specific rights and remedies;
(a) To require Borrower to assemble and make available to Bank
at a place to be designated by Bank which is also reasonably convenient to
Borrower all documentation regarding Borrower's right, title and interest
in the assets and properties.
(b) To exercise any and all rights of set-off which Bank may
have against any account funds (excluding investment funds), or assets and
properties belonging to Borrower which shall be in Bank's possession or
under its control.
(c) to cure such default, with the result that all costs and
expenses incurred or paid by Bank in effecting such cure shall be
additional charges on the Note which bear interest at the interest rate of
the Note and are payable upon demand.
The proceeds of any disposition of the assets and/or properties for
the Note shall be used to satisfy the following items in the order they are
listed:
(a) The expenses of taking, removing, storing, repairing,
holding, and selling the Collateral, including any legal cost and
attorneys' fees. If the Note is referred to an attorney for collection,
Borrower and all others liable for the Note jointly and severally agree to
pay reasonable attorneys' fees (including appellate, administrative and
bankruptcy fees and costs) and legal expenses.
(b)The expense of liquidating or satisfying any liens, security
interest, or encumbrances on the Collateral which may be prior to the
security interest of Bank.
(c) Any unpaid fees, accrued interest, and then the unpaid
principal amount of the Note.
(d) Any other indebtedness of Borrower to Bank.
If the proceeds realized from the disposition of the asset and/or
properties shall fail to satisfy any of the foregoing items, Borrower and
all others liable for the Note shall forthwith pay by deficiency to Bank
upon demand.
15. CROSS DEFAULT. A default or breach under any of the terms or
conditions of any credit facility with Bank, or any agreement to which
Borrower is obligated, shall at Bank's option, constitute a default under
the Note and this Credit Agreement.
16. NOTICE. All notices required or allowed to be given hereunder
shall be delivered by hand or sent by certified mail return receipt
requested, overnight courier or facsimile transmission, to the party to
which such notice is to be given as follows:
If to Borrower: THE XXXXXXX CO.
0000 Xxxx XxXxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, CFO
If to Bank: NATIONSBANK, N.A.
Commercial Banking
XxxxxxxXxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
and a copy to: XXXX X. MAY, ESQUIRE
MAY, XXXXXXX & XXXXXX, P.A.
NationsBank Tower, Suite 2602
One Financial Plaza
Xxxx Xxxxxxxxxx, XX 00000
Provided that additional or other addresses for the giving of
notice may be thereafter designated by the giving of written notice thereof
to the other party Such notices shall be deemed given or made three (3)
business days following deposit in the U.S. Mail, certified return receipt
requested, or immediately upon receipt if delivered by hand, overnight
courier or facsimile transmission addressed as herein provided.
17. MISCELLANEOUS. Borrower and Bank further covenant and agree as
follows, without limiting any requirement of any other Loan Document:
A. Cumulative Rights and No Waiver. Each and every right granted
to Bank under any Loan Document, or allowed it by law or, equity shall be
cumulative of each other and may be exercised in addition to any and all
other rights of Bank, and no delay in exercising any right shall operate as
a waiver thereof, nor shall any single or partial exercise by Bank of any
right preclude any other or future exercise thereof or the exercise of any
other right. Borrower expressly waives any presentment, demand, protest or
other notice of any kind, excluding a notice of intent to accelerate and
notice of acceleration under which circumstances, Bank shall give notice to
Borrower. No notice to or demand on Borrower in any case shall, of itself,
entitle Borrower to any other or future notice or demand in similar or
other circumstances.
B. Applicable Law. This Credit Agreement and the rights and
obligations of the parties hereunder shall be governed by and interpreted
in accordance with the laws of Florida and applicable United States federal
law.
C. Amendment. No modification, consent, amendment or waiver of
any provision of this Credit Agreement, nor consent to any departure by
Borrower therefrom, shall be effective unless the same shall be in writing
and signed by an officer of Bank, and then shall be effective only in the
specified instance and for the purpose for which given. This Credit
Agreement is binding upon Borrower, its successors and assigns, and inures
to the benefit of Bank, its successors and assigns; however, no assignment
or other transfer of Borrower's rights or obligations hereunder shall be
made or be effective without Bank's prior written consent, nor shall it
relieve Borrower of any obligations hereunder. There is no third party
beneficiary of this Credit Agreement.
D. Documents. All documents, certificates and other items
required under this Credit Agreement to be executed and/or delivered to
Bank shall be in form and content satisfactory to Bank and its counsel.
E. Partial Invalidity. The unenforceability or invalidity of an
provision of this Credit Agreement shall not affect the enforceability or
validity of any other provision herein and the invalidity or
unenforceability of any provision of any Loan Document to any person or
circumstance shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
F. Indemnification. Notwithstanding anything to the contrary
contained in paragraph E above, Borrower shall indemnify, defend and hold
Bank and its successors and assigns harmless from and against any and all
claims, demands, suits, losses, damages, assessments, fines, penalties,
costs or other expenses (including reasonable attorneys' fees and court
costs) arising from or in any way related to any of the transactions
contemplated hereby resulting from Borrower's actions and not due to the
negligence, malfeasance or misfeasance of the Bank. The Borrower's
obligations under this paragraph shall survive the repayment of tile Note.
G. Survivability. All covenants, agreements, representations and
warranties made herein or in the other Loan Documents shall survive the
making of the Loan and shall continue in full force and effect so long as
the Note is outstanding or the obligation of the Bank to make any advances
under the Note shall not have expired.
H. Personal. This Credit Agreement is personal in nature and may
not be assigned.
I. Gender/Plural. Wherever used herein the singular number shall
include the plural and the plural the singular, and the use of any gender
shall include all genders. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their heirs, successors, personal
representatives and assigns.
J. Document Conflict. If the terms and provisions of this Credit
Agreement conflict with any terms and provisions of any other related loan
documents executed in connection herewith, the terms and provisions herein
shall control.
18. WAIVER OF JURY TRIAL. BORROWER AND BANK HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING, DEFENSE OR
COUNTERCLAIM BASED ON THIS CREDIT AGREEMENT, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS CREDIT AGREEMENT, OR PROMISSORY NOTE, OR ANY OTHER
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO ANY LOAN
DOCUNIENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BORROWER AND BANK
ENTERING INTO THE SUBJECT LINE OF CREDIT TRANSACTION.
IN WITNESS WHEREOF, the parties hereto set their hands and seals the
day and year first above written.
Witnesses: BORROWER:
THE XXXXXXX CO., a Florida corporation
_____________________ By: _________________________
Witness Xxxxx X. Xxxxxxx, Chief
Financial Officer
_____________________
Printer Name of Witness
______________________ [Corporate Seal1
Witness
______________________
Printed Name of Witness
BANK:
NATIONSBANK, N.A., a national banking
association
________________________ By: ___________________________
Witness Xxxxx X. Xxxxx, Senior Vice
President
________________________
Printed Name of Witness
_________________________
Witness
_________________________ (Seal)
Printed Name of Witness
