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[NATIONSBANK LETTERHEAD]
October 9, 1997
Xx. Xxxxxxx X. Xxxxxx
Senior Vice President, Administration
PowerCerv Corporation
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, XX 00000
Dear Xxxxx:
This letter will serve as a commitment from NationsBank, N.A. ("Bank") to renew
and extend the maturity date of the existing $5,000,000 line of credit made
available to PowerCerv Corporation ("Borrower") until February 15, 1999. In
consideration or this extension, Xxxxxxxx agrees to pay Bank a commitment fee of
$13,000 to be collected at closing. This commitment is contingent on Borrower
executing all necessary and reasonable documents as required by Bank in order to
renew and extend the loan. All other terms and conditions of the Loan Agreement
dated October 31, 1996 between Borrower and Bank will continue to govern to the
loan and will remain in full force and effect.
This commitment to lend will expire on October 25, 1997 if not accepted in
writing by that date. If acceptable, please denote by executing below.
Sincerely,
NATIONSBANK, N.A.
/s/ Xxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Xxxxx
Senior Vice President
POWERCERV CORPORATION
Terms and conditions accepted this 10th day of October, 1997:
/s/ Xxxxxxx X. Xxxxxx
-------------------------
By: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
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NATIONSBANK, N.A. 2942592
FLORIDA 42554
M987179-001-001
SKD
PROMISSORY NOTE
Date: October 22, 1997 RENEWAL
---------------- -------
This note is a renewal of note #307/315 upon which note documentary stamp
taxes, if due, have been paid.
Amount: $5,000,000.00 Maturity Date: February 15, 1999
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Bank: Borrower:
NationsBank, N.A.
Banking Center:
Tampa PowerCerv Corporation
000 X. Xxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, XX 00000 Xxxxx, XX 00000
Hillsborough County Hillsborough County
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FOR VALUE RECEIVED, the undersigned Borrower unconditionally (and jointly and
severally, if more than one) promises to pay to the order of Bank, its
successors and assigns, without setoff, at its offices indicated at the
beginning of this Note, or at such other place as may be designated by Bank,
the principal amount of FIVE MILLION DOLLARS AND NO CENTS ($5,000,000), or so
much thereof as may be advanced from time to time in immediately available
funds, together with interest computed daily on the outstanding principal
balance hereunder, at an annual interest rate, and in accordance with the
payment schedule, indicated below.
1. RATE.
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF.
Notwithstanding any provision of this Note, Bank does not intend to charge and
Borrower shall not be required to pay any amount of interest or other charges
in excess of the maximum permitted by the applicable law of THE STATE OF
FLORIDA; if any higher rating ceiling is lawful, then that higher rate ceiling
shall apply. Any payment in excess of such maximum shall be refunded to
Borrower or credited against principal, at the option of Bank.
2. ACCRUAL METHOD. Interest at the Rate set forth above will be calculated by
the ACTUAL/360 day method (a daily amount of interest is computed for a
hypothetical year of 360 days; that amount is multiplied by the actual number
of days for which any principal is outstanding hereunder).
3. RATE CHANGE DATE. Any Rate based on a fluctuating index of base rate will
change, unless otherwise provided, each time and as of the date that the index
or base rate changes. In the event any index is discontinued, Bank shall
substitute an index determined by Bank to be comparable, at its sole
discretion.
4. PAYMENT SCHEDULE. All payments received hereunder shall be applied first
to the payment of any expense or charges payable hereunder or under any other
loan documents executed in connection with this Note, then to interest due and
payable, with the balance applied to principal, or in such other order as Bank
shall determine at its option.
SINGLE PRINCIPAL PAYMENT. Principal shall be paid in full in a single
payment on FEBRUARY 15, 1999. Interest thereon shall be paid MONTHLY,
commencing on NOVEMBER 30, 1997, and continuing on the LAST day of each
successive MONTH thereafter, with a final payment of all unpaid interest at the
stated maturity of this Note.
5. REVOLVING FEATURE. Borrower may borrow, repay and reborrow hereunder at
any time, up to a maximum aggregate amount outstanding at any one time equal to
the principal amount of this Note, provided, that Borrower is not in default
under any provision of this Note, any other documents executed in connection
with this Note, or any other note or other loan documents now or hereafter
executed in connection with any other obligation of Borrower to Bank, and
provided that the borrowings hereunder do not exceed any borrowing base or
other limitation on borrowings by Borrower. Bank shall incur no liability for
its refusal to advance funds based upon its determination that any conditions
of such further advances have not been met. Bank records of the amounts
borrowed from time to time shall be conclusive proof thereof.
6. AUTOMATIC PAYMENT. If an account number appears at the end of this
sentence, Xxxxxxxx has elected to authorize Bank to effect payment of sums due
under this Note by means of debiting Borrower's account number _____________.
This authorization shall not affect the obligation of Borrower to pay such sums
when due, without notice, if there are insufficient funds in such account to
make such payment in full on the due date thereof, or if Bank fails to debit the
account.
7. WAIVERS, CONSENTS AND COVENANTS. Borrower, any indorser or guarantor
hereof, or any other party hereto (individually an "Obligor" and collectively
"Obligors") and each of them jointly and severally: (a) waive presentment,
demand, protest, notice of demand, notice of intent to accelerate, notice of
acceleration of maturity, notice of protest, notice of nonpayment, notice of
dishonor, and any other notice required to be given under the law to any Obligor
in connection with the delivery, acceptance, performance, default or
enforcement of this Note, any indorsement or guaranty of this Note, or any
other documents executed in connection with the Note or any other note or other
loan documents now or hereafter executed in connection with any obligation of
Borrower to Bank (the "Loan Documents"); (b) consent to all delays, extensions,
renewals or other modifications of this Note or the Loan Documents, or waivers
of any term hereof or of the Loan Documents, or release or discharge by Bank of
any of Obligors, or release, substitution or exchange or any security for the
payment hereof, or the failure to act on the part of Bank, or any indulgence
shown by Bank (without notice to or further assent from any of Obligors), and
agree that no such action, failure to act or failure to exercise any right or
remedy by Bank shall in any way affect or impair the obligations of any Obligors
or be construed as a waiver by Bank of, or otherwise affect, any of Bank's
rights under the Note, under any indorsement or guaranty of this Note or under
any of the Loan Documents; and (c) agree to pay, on demand, all costs and
expenses of collection or defense of this Note or of any indorsement or
guaranty hereof and/or the enforcement
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or defense of Bank's rights with respect to, or the administration, supervision,
preservation, or protection of, or realization upon, any property securing
payment hereof, including, without limitation, reasonable attorney's and
paralegal's fees, including fees related to any suit, mediation or arbitration
proceeding, out of court payment agreement, trial, appeal, bankruptcy
proceedings or other proceeding, in such amount as may be determined reasonable
by any arbitrator or court, whichever is applicable.
8. INDEMNIFICATION. Obligors agree to promptly pay, indemnify and hold Bank
harmless from all State and Federal taxes of any kind and other liabilities with
respect to or resulting from the execution and/or delivery of this Note or any
advances made pursuant to this Note. If this Note has a revolving feature and
is secured by a mortgage, Obligors expressly consent to the deduction of any
applicable taxes from each taxable advance extended by Bank.
9. PREPAYMENTS. Prepayments may be made in whole or in part at any time on
any loan for which the Rate is based on the Prime Rate. All prepayments of
principal shall be applied in the inverse order of maturity, or in such other
order as Bank shall determine in its sole discretion. No prepayment of any
other loan shall be permitted without the prior written consent of Bank.
Notwithstanding such prohibition, if there is a prepayment of any such loan,
whether by consent of Bank, or because of acceleration or otherwise, Borrower
shall, within 15 days of any request by Bank, pay to Bank any loss or expense
which Bank may incur or sustain as a result of such prepayment. For the
purposes of calculating the amounts owed only, it shall be assumed that Bank
actually funded or committed to fund the loan through the purchase of an
underlying deposit in an amount and for a term comparable to the loan, and such
determination by Bank shall be conclusive, absent a manifest error in
computation.
10. DELINQUENCY CHARGE. To the extent permitted by law, a delinquency charge
may be imposed in an amount not to exceed four percent (4%) of any payment that
is more than fifteen days late.
11. EVENTS OF DEFAULT. The following are events of default hereunder: (a) the
failure to pay or perform any obligation, liability or indebtedness of any
Obligor to Bank, or to any affiliate or subsidiary of NationsBank Corporation,
whether under this Note or any Loan Documents, as and when due (whether upon
demand, at maturity or by acceleration); (b) the failure to pay or perform any
other obligation, liability or indebtedness of any Obligor to any other party;
(c) the death of any Obligor (if an individual); (d) the resignation or
withdrawal of any partner of a material owner/guarantor of Borrower, as
determined by Bank in its sole discretion; (e) the commencement of a
proceeding against any Obligor for dissolution or liquidation, the voluntary or
involuntary termination or dissolution of any Obligor or the merger or
consolidation of any Obligor with or into another entity; (f) the insolvency
of, the business failure of, the appointment of a custodian, trustee,
liquidator or receiver for or for any of the property of, the assignment for
the benefit or creditors by, or the filing of a petition under bankruptcy,
insolvency or debtor's relief law or the filing of a petition for any adjustment
of indebtedness, composition or extension by or against any Obligor; (g) the
determination by Bank that any representation or warranty made to Bank by any
Obligor in any Loan Documents or otherwise is or was, when it was made, untrue
or materially misleading, (h) the failure of any Obligor to timely deliver such
financial statements, including tax returns, other statements of condition or
other information, as Bank shall request from time to time; (i) the entry of a
judgment against any Obligor which Bank deems to be of a material nature, in
Bank's sole discretion; (j) the seizure of forfeiture of, or the issuance of
any writ of possession, garnishment or attachment, or any turnover order for
any property of any Obligor; (k) the determination by Bank that it is insecure
for any reason; (l) the determination by Bank that a material adverse change has
occurred in the financial condition of any Obligor; or (m) the failure or
Borrower's business to comply with any law or regulation controlling its
operation.
12. REMEDIES UPON DEFAULT. Whenever there is a default under this Note (a)
the entire balance outstanding hereunder and all other obligations of any
Obligor to Bank (however acquired or evidenced) shall, at the option of Bank,
become immediately due and payable and any obligation of Bank to permit further
borrowing under this Note shall immediately cease and terminate, and/or (b) to
the extent permitted by law, the Rate of interest on the unpaid principal shall
be increased at Bank's discretion up to the maximum rate allowed by law, or if
none, 25% per annum (the "Default Rate"). The provisions herein for a Default
Rate shall not be deemed to extend the time for any payment hereunder or to
constitute a "grace period" giving Obligors a right to cure any default. At
Bank's option, any accrued and unpaid interest, fees or charges may, for
purposes of computing and accruing interest on a daily basis after the due date
of the Note of any installment thereof, be deemed to be a part of the principal
balance, and interest shall accrue on a daily compounded basis after such date
at the Default Rate provided in this Note until the entire outstanding balance
of principal and interest is paid in full. Upon a default under this Note, Bank
is hereby authorized at any time, at its option and without notice or demand, to
set off and charge against any deposit accounts of any Obligor, (as well as any
money, instruments, securities, documents, chattel paper, credits, claims,
demands, income and any other property, rights and interests of any Obligor),
which at any time shall come into the possession or custody or under the control
of Bank or any of its agents, affiliates or correspondents, any and all
obligations due hereunder. Additionally, Bank shall have all rights and
remedies available under each of the Loan Documents, as well as all rights and
remedies available at law or in equity. Any judgment rendered on this Note
shall bear interest at the highest rate of interest permitted pursuant to
Chapter 687, Florida Statutes.
13. NON-WAIVER. The failure at any time of Bank to exercise any of its
options or any other rights hereunder shall not constitute a waiver thereof,
not shall it be a bar to the exercise of any of its options or rights at a
later date. All rights and remedies of Bank shall be cumulative and may be
pursued singly, successively or together, at the option of Bank. The
acceptance by Bank of any partial payment shall not constitute a waiver of any
default or of any of Bank's rights under this Note. No waiver of any of its
rights hereunder, and no modification or amendment of this Note, shall be
deemed to be made by Bank unless the same shall be in writing, duly signed on
behalf of Bank; each such waiver shall apply only with respect to the specific
instance involved, and shall in no way impair the rights of Bank or the
obligations of Obligors to Bank in any other respect at any other time.
14. APPLICABLE LAW, VENUE AND JURISDICTION. This Note and the rights and
obligations of Borrower and Bank shall be at governed by the interpreted in
accordance with the law of the State of Florida. In any litigation in
connection with or to enforce this Note or any indorsement or guaranty of this
Note or any Loan Documents, Obligors, and each of them, irrevocably consent to
and confer personal jurisdiction on the courts of the State of Florida or the
United States located within the State of Florida and expressly waive any
objections as to venue in any such courts. Nothing contained herein shall,
however, prevent Bank from bringing any action or exercising any rights within
any other state or jurisdiction or from obtaining personal jurisdiction by any
other means available under applicable law. The interest rate charged on this
Note is authorized by Chapter 655, Florida Statutes and Section 687.12, Florida
Statutes.
15. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision of
this Note shall not affect the enforceability of validity of any other
provision herein and the invalidity or unenforceability of any provision of
this Note or of the Loan Documents to any person or circumstance shall not
affect the enforceability or validity of such provision as it may apply to other
persons or circumstances.
Promissory Note Page 2
AS041
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16. BINDING EFFECT. This Note shall be binding upon and inure to the benefit
of Xxxxxxxx, Obligors and Bank and their respective successors, assigns, heirs
and personal representatives, provided, however, that no obligations of
Borrower or Obligors hereunder can be assigned without prior written consent of
Bank.
17. CONTROLLING DOCUMENT. To the extent that this Notice conflicts with or is
in any way incompatible with any other document related specifically to the
loan evidenced by this Note, this Note shall control over any other such
document, and if the Note does note address an issue, then each other such
document shall control to the extent that it deals most specifically with an
issue.
18. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT. SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION, ANY
PARTY TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING
A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER
SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF
ANY BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT, OR IF THERE IS REAL OR PERSONAL PROPERTY COLLATERAL, IN
THE COUNTY WHERE SUCH REAL OR PERSONAL PROPERTY IS LOCATED AND ADMINISTERED BY
J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90
DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A
SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP
TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C., SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE
RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED
TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL AND PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH
AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OR SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
BORROWER REPRESENTS TO BANK THAT THE PROCEEDS OF THIS LOAN ARE TO BE USED
PRIMARILY FOR BUSINESS, COMMERCIAL OR AGRICULTURAL PURPOSES. XXXXXXXX
ACKNOWLEDGES HAVING READ AND UNDERSTOOD, AND AGREES TO BE BOUND BY, ALL TERMS
AND CONDITIONS OF THIS NOTE AND HEREBY EXECUTES THIS NOTE UNDER SEAL AS OF THE
DATE HERE ABOVE WRITTEN.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN OR ORAL AGREEMENTS BETWEEN THE PARTIES.
IF THIS NOTE IS SECURED BY A MORTGAGE ON REAL PROPERTY, DOCUMENTARY STAMP TAXES
HAVE BEEN PAID AND AFFIXED TO THE MORTGAGE.
EXECUTION DATE: 22 October 1997
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BORROWER:
POWERCERV CORPORATION
(A FLORIDA CORPORATION)
BY: /S/ XXXXX XXXXXX (XXXX)
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NAME: XXXXX XXXXXX
TITLE: SENIOR VICE PRESIDENT
BY: (SEAL)
--------------------------
NAME:
--------------------------
TITLE:
--------------------------
(CORPORATE SEAL)
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EXHIBIT A
The Rate will change as follows based on the ratio of Xxxxxxxx's "Total
Liabilities" to "Tangible Net Worth", as such terms are defined in the Loan
Agreement between Borrower and Bank dated October 31, 1996 (the "Loan
Agreement"):
Ratio of Total Liabilities to Tangible Net Worth Rate
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If less than or equal to .50 to 1.00 90 day floating LIBOR
Rate + 1.50%.
If greater than .50 to 1.00 90 day floating LIBOR
Rate + 2.00%
Upon Bank's receipt of the financial statements required by Sections 4B(i),
4B(ii), 4B(iii) and 4B(iv) of the Loan Agreement (the "Financial Statements"),
the Bank will make the calculation to determine the applicable Rate as set
forth above. Bank will notify the Borrower of the applicable Rate which will
become effective five (5) business days after Bank's receipt of the Financial
Statements. In addition to all other rights and remedies available to Bank
under the Loan Documents, should Borrower fail to provide the Financial
Statements, Bank will have the option to increase the Rate to the Default Rate.
The term "LIBOR Rate" as used herein shall mean the floating and fluctuating
rate of interest (rounded upward, if necessary, to the next higher 1/16 of 1%)
set by Bank in accordance with its customary general) practice from time to
time as the daily LIBOR Rate for ninety (90) day Dollar deposits as adjusted
for required reserves, FDIC premiums and other regulatory costs. Each time the
LIBOR Rate changes, the per annum rate of interest on this Note shall change
immediately and contemporaneously with such change in the LIBOR Rate.
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NOTARY PAGE TO NOTE FOR POWERCERV CORPORATION, DATED OCTOBER 22, 19997 IN THE
AMOUNT OF $5,000,000.00.
STATE OF GEORGIA
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me tis 22nd day of OCTOBER,
1997, by XXXXX XXXXXX, SENIOR VICE PRESIDENT of POWERCERV CORPORATION a FLORIDA
CORPORATION, on behalf of said corporation.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Notary Public, State of Georgia
--------
My Commission Expires:
Notary Public, Xxxxxxx County, Xxxxxxx Xxxxxx X. Xxxxxxx
My Commission Expires October 8, 2001 --------------------------------
Print or type name of Notary
